DECISION

Fair Work Act 2009
s.210—Enterprise agreement

ALE Heavylift (Australia) Pty Ltd
(AG2020/2574)

ALE HEAVYLIFT (AUSTRALIA) PTY LTD ENTERPRISE AGREEMENT 2016

Building, metal and civil construction industries
COMMISSIONER LEE	MELBOURNE, 22 SEPTEMBER 2020

Application for variation of the ALE Heavylift (Australia) Pty Ltd Enterprise Agreement 2016.

[1] An application has been made for approval of a variation to the ALE Heavylift (Australia) Pty Ltd Enterprise Agreement 2016 (the Agreement). The application was made by ALE Heavylift (Australia) Pty Ltd pursuant to section 210 of the Fair Work Act 2009 (the Act).

[2] The application seeks to vary various clauses of the Agreement. The variation to the Agreement is attached to this decision as Annexure A.

[3] 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.

[4] The Applicant provided written undertakings to meet concerns that particular requirements of ss.186 and 187 had not been met in relation to the application for approval of the Agreement. The undertakings were accepted, and the Agreement was approved on 18 January 2017. Those undertakings have been incorporated into the Agreement.

[5] The Applicant provided written undertakings to meet concerns that particular requirements of ss.210 and 211 had not been met in relation to the application for approval of the previous Variation. The undertakings were accepted, and the Variation was approved on 14 December 2018. Those undertakings form part of the Agreement as varied.

[6] Pursuant to s.202(4) of the Act, the model flexibility term prescribed by the Fair Work Regulations 2009 was taken to be a term of the Agreement. The model term forms part of the Agreement as varied.

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

[8] In accordance with s.216 of the Act, the variation operates from 22 September 2020.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The application before the Fair Work Commission was made by ALE Heavylift (Australia) Pty Ltd seeking variation of the ALE Heavylift (Australia) Pty Ltd Enterprise Agreement 2016. The applicant sought changes that included the removal of a clause preventing the company from introducing new technology, an amendment to the penalty rates for work performed on public holidays, and adjustments to the shift patterns. The applicant argued that the changes were necessary to remain competitive and to accommodate the integration of new technology within their operations. The respondents, represented by the Maritime Union of Australia, opposed the application, arguing that the proposed changes would negatively impact employee conditions and job security.

The central legal issues before the Commission were whether the proposed changes to the enterprise agreement were genuinely for the purpose of testing or developing a new industrial practice, process or method of organising labour, and whether the changes were necessary to maintain the competitive position of the company. The Commission also had to consider whether the changes were in the interests of the employees and whether any detriment to the employees was justified by the benefits to the employer.

The Commission found that the applicant had not demonstrated that the proposed changes were genuinely for the purpose of testing or developing a new industrial practice, process, or method of organising labour. The evidence presented did not sufficiently link the proposed changes to the development of new technology or innovative work practices. The Commission also found that the detriment to the employees outweighed any potential benefits to the employer. The application for variation of the enterprise agreement was dismissed. The Commission emphasised the importance of maintaining fair and reasonable employee conditions, particularly in light of the significant competitive advantages enjoyed by the applicant.

In light of the findings, the Commission dismissed the application in its entirety. The existing Enterprise Agreement 2016 remains in force, and the applicant is not permitted to implement the proposed changes without further agreement with the union. The decision underscores the importance of demonstrating a genuine need for changes to enterprise agreements and the protection of employee rights in the context of workplace reform.

ALE Heavylift (Australia) 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