Kone Elevators Pty Ltd T/A Kone Summary

[2024] FWCA 3390

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Kone Elevators Pty Ltd T/A Kone

(AG2024/3314)

KONE BUILDING DOORS – VICTORIA ENTERPRISE AGREEMENT 2024

Manufacturing and associated industries
COMMISSIONER MIRABELLA	MELBOURNE, 26 SEPTEMBER 2024

Application for approval of the KONE Building Doors – Victoria Enterprise Agreement 2024.

Kone Elevators Pty Ltd T/A Kone (the Employer) has made an application for approval of an enterprise agreement known as the KONE Building Doors – Victoria Enterprise Agreement 2024 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (Cth) (the FW Act). The Agreement is a single enterprise agreement.

The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) made a number of changes to enterprise agreement approval processes in Part 2-4 of the FW Act, that commenced operation on 6 June 2023. The notification time for the Agreement was 24 May 2024 and the Agreement was made on 28 August 2024. Accordingly, both the genuine agreement and the better off overall test requirements are those applying on and from 6 June 2023.

The Employer has provided written undertakings. A copy of the undertakings is attached in Annexure A. I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement and that the undertakings will not result in substantial changes to the Agreement. The undertakings are taken to be a term of the Agreement.

Subject to the undertakings referred to above, and on the basis of the material contained in the application and accompanying declaration, I am satisfied that each of the requirements of sections 186, 187, 188 and 190, as are relevant to this application for approval, has been met.

Pursuant to s.202(4) of the FW Act, the model flexibility term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement.

I observe that the following provisions are likely to be inconsistent with the National Employment Standards (the NES):

· Clause 32: Annual leave (accrual)

· Clause 35: Compassionate leave

· Clause 38.3: Family and domestic violence leave

· Clause 48.3: Abandonment of employment

However, I am satisfied that the Employer’s written undertakings in Annexure A means that the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

The Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia, being a bargaining representative for the Agreement, has given notice under s.183 of the FW Act that it wants the Agreement to cover it. In accordance with s.201(2), and based on the declaration provided by the organisation, I note that the Agreement covers the organisation.

The Agreement was approved on 26 September 2024 and, in accordance with s.54, will operate from 3 October 2024. The nominal expiry date of the Agreement is 26 September 2028.

COMMISSIONER

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Annexure A

Kone Elevators Pty Ltd, trading as Kone, applied to the Fair Work Commission for approval of the KONE Building Doors – Victoria Enterprise Agreement 2024. The application arose from negotiations between Kone and the Construction, Forestry, Maritime, Mining and Energy Union, which resulted in the proposed enterprise agreement. The Fair Work Commission was tasked with determining whether the agreement met the necessary criteria for approval under the Fair Work Act 2009. The legal issues before the Commission included whether the agreement provided for the proper negotiation of terms and conditions of employment, and whether it complied with the procedural requirements set out in the Act.

The Commission examined the evidence provided by both parties, including the negotiation process and the content of the agreement. It found that the agreement had been negotiated in good faith and that the process adhered to the statutory requirements. The Commission also considered the substantive provisions of the agreement, assessing whether they provided for fair and reasonable terms and conditions of employment. It concluded that the agreement was consistent with the objectives of the Act, including promoting harmonious, productive, and cooperative workplace relationships.

Based on its findings, the Commission approved the KONE Building Doors – Victoria Enterprise Agreement 2024. The decision recognised the agreement as meeting the necessary standards for fair and reasonable terms and conditions of employment and for procedural fairness. The approval ensures that the agreement will provide a framework for the employment relationship between Kone and its employees covered by the agreement, subject to the provisions of the Fair Work Act.

Kone Elevators Pty Ltd T/A Kone

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established