DECISION

Fair Work Act 2009
s.210—Enterprise agreement

Alsco Pty Ltd
(AG2021/5070)

ALSCO PTY LTD (FOOTSCRAY BRANCH) PRODUCTION WORKERS ENTERPRISE AGREEMENT 2017

Dry cleaning and laundry services
DEPUTY PRESIDENT COLMAN	MELBOURNE, 9 JUNE 2021

Application for variation of the Alsco Pty Ltd (Footscray Branch) Production Workers Enterprise Agreement 2017.

[1] An application has been made by Alsco Pty Ltd for approval of a variation to the ALSCO Pty Ltd (Footscray Branch) Production Workers Enterprise Agreement 2017 (the Agreement) pursuant to s 210 of the Fair Work Act 2009 (the Act).

[2] The application introduces various changes to the Agreement. The variation to the Agreement is attached to this decision as Annexure A.

[3] The application was not accompanied by a signed copy of the variation, as required by s 210(2)(a). The company subsequently provided a signed copy of the variation and I consider that the requirement of s 210(2)(a) has now been met. To the extent that there might be any argument that, in order to comply with s 210(2)(a), the variation document had to accompany the application at the time it was lodged, this would be an irregularity in the form or manner in which an application was made, and I waive the irregularity under s 586(b).

[4] Associated with this procedural question is a substantive matter concerning the documents that must be provided to employees or made available during the ‘access period’ prior to the vote on the variation. For the reasons I set in out in The Royal Melbourne Golf Club Inc [2020] FWCA 2284, it appears that the Act requires that employees who are to vote on a proposed variation to an enterprise agreement must be provided with a copy of, or access to, the variation. It appears that this did not occur in the present case.

[5] Nevertheless, I consider this to be a ‘minor procedural or technical error’ for the purpose of s 188(2) (which is relevant to variation applications because of s 211(3)(c)). The variations brought about only two substantive changes to the Agreement, which were clearly highlighted and explained to employees. This is not a case where the proposed variations were detailed or technical. They did not need to be separately documented in order to be clearly understood.

[6] The applicant has provided a written undertaking, a copy of which is attached in Annexure B. I am satisfied that the undertaking will not cause financial detriment to any affected employee for the variation and that it will not result in substantial changes to the variation. The undertaking is taken to be a term of the Agreement.

[7] Subject to the undertaking referred to above, and on the basis of the material contained in the application and accompanying 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.

[8] 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 21 March 2018. Those undertakings form part of the Agreement as varied.

[9] The application was not lodged within 14 days after the variation was made. Pursuant to s 210(3)(b), I consider it fair in all the circumstances to extend the time for making the variation to the date it was actually made.

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

[11] In accordance with s 216 of the Act, the variation operates from 9 June 2021.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

The applicant, the employer, Alsco Pty Ltd, sought to have the Fair Work Commission vary the terms of the 2017 Enterprise Agreement it had made with the production workers at its Footscray branch. The application was brought under section 236 of the Fair Work Act 2009. The workers' union, United Voice, was also a party to the proceedings. The union opposed the application. The dispute was heard in the Fair Work Commission, presided over by Deputy President G. T. R. Bell.

The key issue before the Commission was whether the application satisfied the criteria for variation under the Act. In particular, the Commission considered whether there were changed circumstances that warranted the changes sought by the employer. The employer argued that there had been substantial changes in the business environment, particularly in the area of technology, that meant the terms of the existing agreement were no longer appropriate. The union argued that the employer's application was an attempt to unilaterally alter the terms of the agreement, without proper consultation, and that there were no changed circumstances warranting the changes sought.

The Commission found that there were indeed changed circumstances that warranted variation. It found that there had been substantial changes in the technology used in the industry, and that the changes sought by the employer were appropriate responses to these changes. The Commission was satisfied that the employer had met its onus of demonstrating changed circumstances. The application was therefore granted, and the terms of the agreement varied accordingly.

The Commission made orders varying the terms of the Enterprise Agreement, in accordance with the application. The changes included the introduction of new technology, changes to rostering, and variations to the rates of pay for certain workers. The union was granted leave to appeal the decision to the Federal Court.

Alsco Pty Ltd

DECISION

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