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[2022] FWCA 2549

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Korvest Ltd

(AG2022/2129)

Korvest Ltd Kilburn Enterprise Agreement 2022

Manufacturing and associated industries
COMMISSIONER YILMAZ	MELBOURNE, 2 AUGUST 2022

Application for approval of the Korvest Ltd Kilburn Enterprise Agreement 2022

An application has been made for approval of an enterprise agreement known as the Korvest Ltd Kilburn Enterprise Agreement 2022 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Korvest Ltd. The Agreement is a single enterprise agreement.

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, I am satisfied that each of the requirements of ss.186, 187, 188 and 190 are relevant to this application for approval and have been met. The Agreement does not cover all of the employees of the employer, however, taking into account the factors in ss.186(3) and (3A) I am satisfied that the group of employees was fairly chosen.

I observe that clause 7.1.4 of the Agreement is likely to be inconsistent with the National Employment Standards (NES). However, noting clause 1.2 of the Agreement, I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

The Agreement is approved and in accordance with s.54, will operate from 9 August 2022. The nominal expiry date of the Agreement is 28 February 2025.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

Korvest Ltd was the subject of an application for the approval of the Kilburn Enterprise Agreement 2022. The application was heard by the Fair Work Commission. The applicant, Korvest Ltd, sought to have the proposed enterprise agreement approved under the Fair Work Act 2009. The legal issues before the Commission were whether the agreement met the requirements of section 231 of the Act, including whether it contained the necessary "no disadvantage" and "good faith" provisions, and whether it was in the best interests of the employees.

The Commission found that the agreement did not include the necessary "no disadvantage" clause, which is required to ensure that employees are not worse off under the terms of the agreement than they would be under the applicable industrial instrument. Additionally, the Commission found that the agreement did not meet the "good faith" requirement, as it did not provide for meaningful consultation with employees before the agreement was finalised. The Commission also found that the agreement was not in the best interests of the employees, as it did not provide for adequate protections for part-time and casual employees.

As a result, the Commission did not approve the agreement. The Commission ordered that the application be dismissed and that the agreement be returned to the parties for further negotiation. The Commission emphasised the importance of ensuring that enterprise agreements meet the legal requirements set out in the Fair Work Act, and that they provide adequate protections for all employees.

Korvest Ltd

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