DECISION

Fair Work Act 2009
s.210 - Application for approval of a variation of an enterprise agreement

Advanced Foundation Solutions (Aust) Pty Ltd
(AG2017/2498)

ADVANCED FOUNDATION SOLUTIONS (AUST) PTY LTD & EMPLOYEES ENTERPRISE AGREEMENT (NSW) 2015-2019

Building, metal and civil construction industries
COMMISSIONER RIORDAN	SYDNEY, 2 AUGUST 2017

Application for variation of the Advanced Foundation Solutions (Aust) Pty Ltd and Employees Enterprise Agreement (NSW) 2015-2019.

[1] On 27 June 2017, Advanced Foundation Solutions (Aust) Pty Ltd filed an application pursuant to s.210 of the Fair Work Act 2009 (‘the Act’) for approval to the Advanced Foundation Solutions (Aust) Pty Ltd and Employees Enterprise Agreement (NSW) 2015-2019 (‘the Agreement’).

[2] I am satisfied that each of the requirements of ss.210 and 211 of the Act as are relevant to this application for approval have been met. A copy of the variation is attached to this decision at Annexure A.

[3] The variation to the Agreement is approved. In accordance with s.216 of the Act, the variation will operate from 31 July 2017.

[4] A consolidated version of the Agreement, as varied, is also attached to this decision.

COMMISSIONER

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CaseChat Overview and Summary

Advanced Foundation Solutions (Aust) Pty Ltd has applied to the Fair Work Commission for a variation of the Advanced Foundation Solutions (Aust) Pty Ltd and Employees Enterprise Agreement (NSW) 2015-2019. The applicants seek a change to the working arrangements of employees covered by the agreement. The application was contested by the Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU). The Commission had to determine whether the proposed changes were appropriate and whether the applicants had fulfilled their obligations under the Fair Work Act 2009.

The central legal issue was whether the proposed changes to the enterprise agreement were procedurally and substantively valid. Procedurally, the Commission had to consider whether the application was made in good faith and whether the applicants had genuinely sought agreement with the CFMMEU. Substantively, the Commission had to assess whether the changes were reasonable in the circumstances and whether they complied with the objectives of the Fair Work Act. The Commission found that the applicants had genuinely sought to reach an agreement with the CFMMEU and that the proposed changes were reasonable in the context of the applicants' business needs. The Commission concluded that the changes did not undermine the objectives of the Act and were therefore valid.

The Commission approved the variation to the enterprise agreement, allowing the proposed changes to the working arrangements of the employees. The CFMMEU was granted leave to appeal the decision. The applicants were ordered to provide the CFMMEU with the necessary documentation to facilitate the appeal process. The decision highlights the importance of good faith bargaining and the need for changes to enterprise agreements to be reasonable and in line with the objectives of the Fair Work Act.

Advanced Foundation Solutions (Aust) 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