Konica Minolta Business Solutions Australia Pty Ltd T/A Konica Minolta Business Solutions

[2021] FWCA 2816

[2021] FWCA 2816

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Konica Minolta Business Solutions Australia Pty Ltd T/A Konica Minolta Business Solutions
(AG2021/4682)

KONICA MINOLTA FIELD SERVICE ENTERPRISE AGREEMENT 2021

Business equipment industry
COMMISSIONER WILSON	MELBOURNE, 21 MAY 2021

Application for approval of the Konica Minolta Field Service Enterprise Agreement 2021.

[1] An application has been made for approval of an enterprise agreement known as the Konica Minolta Field Service Enterprise Agreement 2021 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Konica Minolta Business Solutions Australia Pty Ltd T/A Konica Minolta Business Solutions. The Agreement is a single enterprise agreement and is stated to have nation-wide application.

[2] Bargaining included the involvement of 11 employee bargaining representatives and there were no union bargaining representatives. After lodgement of the application, two of the bargaining representatives, Jason O’Brien and Stefan Redwood, filed Forms 18A, (Declaration of employee representative) opposing approval of the Agreement by the Fair Work Commission. Their grounds for doing so included;

● There had been no “initial voting” before bargaining commenced to ascertain if employees wanted an enterprise agreement (O’Brien);
● Although the later vote for making the agreement passed, it did not pass in 3 of the 6 States (O’Brien);
● After the Agreement was made the Applicant issued new employment contracts which undermined or had the potential to undermine the terms of the Agreement, and which demonstrated a lack of good faith in bargaining (O’Brien and Redwood);
● Bargaining itself was not carried out in good faith, with the employer’s position on key points held until the end and the ballot for the Agreement rushed forward (O’Brien and Redwood);
● Key safety concerns of employees were not resolved during negotiations (O’Brien);
● Although the Agreement’s redundancy provisions were better than the reference award, the new contracts might potentially block entitlements with indefinite and ambiguous stand down directions (O’Brien);
● There was “bullying” in the negotiations over the payrate (Redwood).
● The redundancy provisions for Shift Field Service Engineers are different to those for Field Service Engineers (Redwood).

[3] As a result of these objections, I issued Directions to all parties for the filing of such further material and submissions as each desired to provide in relation to the approval objections from Mr O’Brien and Mr Redwood. As a result of the Directions, Mr O’Brien provided some further material regarding his concerns and solicitors acting for the Applicant provided submissions rebutting the bargaining representative concerns. Mr O’Brien’s further submissions dealt with the matter of the new employment contracts and matters associated with the redundancy arrangements.

[4] The Applicant’s submissions comprehensively rebutted the concerns raised by the bargaining representatives, putting forward these matters;

● There is no requirement for an initial vote to authorise the commencement of bargaining;
● The Act provides that an agreement is made when the majority of employees vote for it, and account is not taken of how particular states or territories vote;
● There was no request in bargaining for the scope of a resulting agreement to be varied from that proposed by;
● Bargaining was over numerous meetings between November 2020 and March 2021. The employer’s proposed draft agreement was first given to all employees in February and the agreement-in-principle was circulated to all staff in March which was then subject of a further revision later in March;
● There was no lack of good faith bargaining;
● The employment contracts issued by Konica Minolta after the Agreement was made are not relevant to the Commission’s consideration of its approval, with it being made clear to recipients that the enterprise agreement prevails over the contract to the extent of any inconsistency.
● The provisions of the contracts dealing with standdown are consistent with s.524(1) of the Act;
● The safety matter raised by Mr O’Brien is not relevant to consideration of approval the Agreement;
● The Applicant rejects the claim of bullying in bargaining over payrates. It explains that the last pay rise of the current agreement was removed in a variation to that agreement approved by the Commission and that the proposed new Agreement provides for pay increases to apply from the first full pay period on after the date the Agreement is made.

[5] Due to the nature of the submissions, I considered it would be appropriate to determine this matter on the papers. No party objected to this course after I disclosed my intention to them.

[6] In forming my views about the application, I have taken into account and rely upon the material provided by the Applicant at the time of seeking approval of the Agreement, the initial objections by Mr O’Brien and Mr Redwood and Mr O’Brien’s later submission, as well as the Applicant’s submissions. I am satisfied from these matters that the objections raised are in the main not relevant to the Commission’s approval of the Agreement. In many respects the objections raised stem from a disagreement over the bargaining outcome, rather than being matters germane to approval by the Commission. The objections couched as breaches of the Applicant’s good faith bargaining obligations have not been made out, with me being satisfied from the Applicant’s submissions that its conduct was in accord with its obligations. In relation to the issue of revised contracts of employment after the making of the Agreement, such may have been unwise or even ill-advised, since it must surely raise in many employee’s mind a question about how the contracts relate to the Agreement. However, the fact that the contracts make clear that the Agreement prevails to the extent of any inconsistency is a sufficient answer to the objection.

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

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

[9] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 28 May 2021. The nominal expiry date of the Agreement is 30 April 2025.

COMMISSIONER

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