Abcorp Australasia Pty Ltd

[2021] FWCA 2061

[2021] FWCA 2061

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.210—Enterprise agreement

Abcorp Australasia Pty Ltd
(AG2021/392)

ABCORP AUSTRALASIA NSW ENTERPRISE AGREEMENT 2019

Publishing industry
COMMISSIONER YILMAZ	MELBOURNE, 21 APRIL 2021

Application for variation of the ABCorp Australasia NSW Enterprise Agreement 2019.

[1] An application has been made for approval of a variation to the ABCorp Australasia NSW Enterprise Agreement 2019 (the Agreement). The application was made by Abcorp Australasia Pty Ltd (the Applicant) pursuant to section 210 of the Fair Work Act 2009 (the Act).

[2] The application seeks to vary Attachment A – Wage Structure of the Agreement. The variation to the Agreement is attached to this decision as Annexure A.

[3] On 24 August 2020, I approved an application for the Agreement lodged by the Applicant which resulted in a 6-month deferral of the wage increase arising under the Agreement (the initial wage increase deferral).

[4] Following the initial wage increase deferral, further discussions were held between the Applicant, employees and representatives of the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) between December 2020 and January 2021 regarding a preliminary proposal to defer the next wage increase under the Agreement for a period up to 6 months. These discussions resulted in an in-principle agreement to defer the wage increase arising under the Agreement for a 3 month period.

[5] The Applicant filed supporting documentation which confirmed that employees were consulted about the proposed deferral of the wage increase through multiple information sessions and consultation meetings held throughout December 2020, January 2021 and in February 2021.

[6] The proposal to defer the wage increase was ultimately put to a vote of employees on 5 February 2021. The results of the vote indicate that 109 of a possible 111 employees cast a valid vote, with a majority of 95 employees voting in favour of the variation.

[7] I am satisfied that each of the requirements of ss.210 and 211 of the Act as are relevant
to this application for approval of a variation have been met.

[8] In relation to genuine agreement specifically, further information was sought by the Commission regarding whether the variation was adequately explained to and understood by employees prior to the wage deferral coming into effect. In response, on 29 March 2021, the Applicant filed a further declaration confirming the dates of information sessions held with employees, as well as the rationale for the variation and the impact of the variation on employees. Critically, the Applicant in its declaration also confirmed that employees and the AMWU were advised prior to 31 December 2020 that if the process of variation was not completed prior to 1 January 2021, that the Commission would be requested to approve the variation with the effective date being 1 January 2021.

[9] Although the circumstances relating to the deferral are unusual and exceptional, due to the request for the variation to be backdated, in light of the declarations and material filed by the Applicant, employee representatives and the correspondence from the AMWU supporting the Applicant’s submissions, I am satisfied that the variation was genuinely agreed to by employees covered by the Agreement, and I am satisfied that the variation application should be approved.

[10] The Applicant provided written undertakings to meet concerns that particular requirements of ss.186 and 187 had not been met in relation to the s.185 application for approval of the single-enterprise agreement lodged by the Applicant on 2 June 2020. The undertakings were accepted, and the s.185 application for approval of the Agreement was approved on 4 December 2019. Those undertakings form part of the Agreement as varied.

[11] The variation is approved and the consolidated version of the Agreement, as varied, is attached to this decision.

[12] In accordance with s.216 of the Act, the variation operates from 1 January 2021.

COMMISSIONER

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