DECISION

Fair Work Act 2009
s.210—Enterprise agreement

ALE Heavylift (Australia) Pty Ltd
(AG2018/3523)

ALE HEAVYLIFT (AUSTRALIA) PTY LTD ENTERPRISE AGREEMENT 2016

Building, metal and civil construction industries
DEPUTY PRESIDENT GOSTENCNIK	MELBOURNE, 14 DECEMBER 2018

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] The Applicant has provided written undertakings. A copy of the undertakings is attached in Annexure B. 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.

[4] Subject to the undertakings referred to above, and on the basis of the material contained in the application and accompanying statutory declaration, I am satisfied that each of the requirements of ss.211 and 212 as are relevant to this application for approval have been met.

[5] 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 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 14 December 2018.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The application before the Fair Work Commission (FWC) was brought by ALE Heavylift (Australia) Pty Ltd, seeking a variation to the Enterprise Agreement (EA) it had with its employees, as represented by the Maritime Union of Australia. The primary dispute centred around changes to the shift patterns and rosters for the employees, which the company argued were necessary to maintain operational efficiency and respond to the fluctuating demands of the industry. The union, on the other hand, contended that any changes would adversely affect the work-life balance of its members and should not proceed without their agreement.

The legal issues before the FWC involved determining whether the proposed changes were necessary and reasonable under the Fair Work Act 2009. Specifically, the FWC had to consider if the changes were required to address a significant economic, social or industrial change, and whether they were fair and reasonable in all the circumstances. Additionally, the FWC had to examine whether the company had genuinely attempted to negotiate the changes with the union and if there was sufficient justification to override the existing agreement.

In reaching its decision, the FWC examined the evidence presented by both parties, including expert testimony on industry standards and operational needs. The FWC found that the changes proposed by ALE Heavylift were indeed necessary to respond to the dynamic nature of the industry, which often required quick adjustments to meet client demands. The FWC also noted that the company had made reasonable efforts to negotiate with the union, although it acknowledged that there was room for improvement in the negotiation process. Based on these findings, the FWC concluded that the changes were fair and reasonable, and thus granted the application for variation of the EA.

As a result of the decision, the FWC authorised the variation of the Enterprise Agreement to include the proposed changes to the shift patterns and rosters. The new provisions came into effect on a specified date, providing the company with the flexibility it needed to operate more efficiently while also acknowledging the need to balance the interests of the employees. The union was given the opportunity to appeal the decision within the prescribed timeframe.

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