KONE Elevators Pty. Ltd T/A KONE Elevators

[2019] FWCA 4344

[2019] FWCA 4344

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

KONE Elevators Pty. Ltd T/A KONE Elevators
(AG2019/1764)

KONE SERVICE EMPLOYEES SOUTH AUSTRALIA ENTERPRISE AGREEMENT 2019

Building, metal and civil construction industries
COMMISSIONER PLATT	ADELAIDE, 21 JUNE 2019

Application for approval of the KONE Service Employees South Australia Enterprise Agreement 2019.

[1] An application has been made for approval of an enterprise agreement known as the KONE Service Employees South Australia Enterprise Agreement 2019 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act) by KONE Elevators Pty. Ltd T/A KONE Elevators. The agreement is a single enterprise agreement.

[2] The matter was allocated to my Chambers on 11 June 2019.

[3] On 20 June 2019, I conducted a telephone conference with the parties to seek clarification about aspects of the Agreement and invited the Applicant to address these matters including the provision of an undertaking.

[4] The Applicant has submitted an undertaking in the required form dated 20 June 2019. The undertaking deals with the following topics:

•  The definition of a shift worker will be for the purposes of the National Employment Standards (NES).

•  Clause 33(b) of the Agreement, will apply to part-time employees on a pro-rata basis.

•  Clause 39 of the Agreement will operate consistent with the NES.

•  In relation to the interstate work provision contained in the Agreement, the Commissioner notes that the purpose of this clause is to provide employee who are required to work interstate with the benefits of the relevant KONE interstate agreement if the interstate agreement has terms and conditions that are superior to this Agreement.

•  The words “neglect of duty” contained in clause 42.1(e) of the Agreement shall not apply.

•  Clause 42.2(b) of the Agreement will operate subject to s.324 and s.326 of the Act.

•  For the purposes of clause 43 of the Agreement, the Applicant has provided their redundancy policy and this policy is taken to form part of this Agreement.

•  For the avoidance of doubt, the Applicant acknowledges and undertakes that the NES applies to all employees covered by the Agreement as a minimum standard.

[5] A copy of the undertaking has been provided to the bargaining representatives and I have sought their views in accordance with s.190(4) of the Act. The bargaining representatives did not express any view on the undertaking.

[6] The undertaking appears to meet the requirements of s.190(3) of the Act and I have accepted it. As a result, the undertakings are taken to be a term of the Agreement.

[7] As the Agreement does not contain a flexibility term which meets the requirements of s.203 of the Act, the model flexibility term is taken to be a term of the Agreement.

[8] The “Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU)”, being a bargaining representative for the Agreement, has given notice under s.183 of the Act that it wants the Agreement to cover it. In accordance with s.201(2) of the Act I note that the Agreement covers this organisation.

[9] I am satisfied that each of the requirements of ss.186, 187, 188 and 190 of the Act as are relevant to this application for approval have been met.

[10] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 7 days from the date of approval of the Agreement. The nominal expiry date is 1 June 2020.

COMMISSIONER

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