Korvest Ltd

[2019] FWCA 3680

[2019] FWCA 3680

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Korvest Ltd
(AG2019/1314)

KORVEST LTD KILBURN ENTERPRISE AGREEMENT 2019

Manufacturing and associated industries
COMMISSIONER PLATT	ADELAIDE, 30 MAY 2019

Application for approval of the Korvest Ltd Kilburn Enterprise Agreement 2019.

[1] An application has been made for approval of an enterprise agreement known as the Korvest Ltd Kilburn Enterprise Agreement 2019 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act) by Korvest Ltd. The agreement is a single enterprise agreement.

[2] The matter was allocated to my Chambers on 8 May 2019.

[3] On 13 May 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 27 May 2019. The undertaking deals with the following topics:

•  For the purposes of clause 7.1.6. of the Agreement, apprentices will not be excluded from receiving notice of termination.

•  Apprenticed employees will not be paid in accordance with the Junior Rates Table contained at clause 4.1.9 of the Agreement; they will be paid in accordance with Schedule 1 of the Agreement.

•  By agreement between the employer and the majority of employees concerned or in appropriate cases an individual employee, the span of hours over which shifts may be worked may be altered by up to one hour at either end of the span.

•  For the purposes of clause 5.2.1. of the Agreement, an employee working afternoon shift shall be paid a loading of 15% calculated on his/her periodic ordinary hourly rate of pay as a shift allowance, which will be applicable where the shift finishes after 6:00pm and at or before midnight.

•  For the purposes of clause 5.2.2. of the Agreement, an employee working night shift shall be paid a loading of 30% calculated on his/her periodic ordinary hourly rate of pay as a shift allowance, which will be applicable where the shift finishes after midnight and at/or before 8:00am.

•  Where an employee works an afternoon or night shift which does not continue:

(a) For at least five successive afternoon or night shifts or six successive afternoon or night shifts in a six day workshop (where no more than eight ordinary hours on worked on each shift); or

(b) For at least 38 ordinary hours (where more than eight ordinary hours are worked on each shift)

must be paid for each shift 50% extra for the first three hours and 100% extra for the remaining hours.

•  The Applicant undertakes that employees engaged on a part-time basis will work a regular pattern of hours which averages less than 38 hours per week. The Applicant undertakes that the employee and the Applicant must agree in writing on the hours to be worked, on which days the work will occur and the commencing and finishing times of the work. The Applicant undertakes that where a part-time employee works any additional hours, they will be paid overtime as specified in clause 11 of the Agreement.

•  The Applicant undertakes to provide not less than 4 weeks’ notice to employees of a shutdown.

•  For the purposes of clause 7.2.5.1, if the Applicant finds acceptable alternative employment for a potentially redundant employee and the total remuneration available to the employee is comparable, the Applicant will make an application to the Fair Work Commission under section 120 of the Act that they are not required to pay severance pay.

•  Clause 5.11(d) and 5.11(e) of the Agreement shall no longer apply.

•  Clause 7.3.3 of the Agreement will operate subject to s.324 of the Act.

•  The Applicant has inserted a NES precedence clause.

[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] 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.

[8] 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 28 February 2022.

COMMISSIONER

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