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

Printed by authority of the Commonwealth Government Printer

Abcorp Australasia Pty Ltd sought to vary the ABCorp Australasia NSW Enterprise Agreement 2019. The application was made under section 232 of the Fair Work Act 2009, aiming to amend specific provisions concerning employee entitlements and operational protocols. The Fair Work Commission, which handled the application, had to decide whether the proposed changes were in the interests of good faith bargaining and whether they would benefit the employees and employers involved.

The legal issues before the Commission were multifaceted, focusing on whether the proposed variations were necessary to reflect changing business conditions and workplace realities. The primary concern was whether the changes would adversely impact the employees' rights and benefits, and whether the employer could demonstrate that the amendments were essential to maintain a viable and competitive business. Additionally, the Commission had to consider whether the application process was conducted in good faith and whether the changes were fair and reasonable.

In its reasoning, the Commission determined that the proposed variations did not significantly alter the employees' entitlements and were necessary to adapt to evolving business conditions. The Commission found that the changes would not adversely affect the employees and would, in fact, help maintain the employer's competitiveness. It was also concluded that the application was made in good faith and that the proposed changes were fair and reasonable. Consequently, the application was approved.

The Fair Work Commission ordered that the ABCorp Australasia NSW Enterprise Agreement 2019 be varied as per the terms proposed by Abcorp Australasia Pty Ltd. The specific changes included modifications to shift rosters, leave entitlements, and operational protocols. The decision was made effective from the date of the Commission's determination.

Abcorp Australasia Pty Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established