FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.210—Enterprise agreement

Aqua Infra Pty Ltd
(AG2020/1916)

AQUA INFRA ENTERPRISE AGREEMENT 2019-2022

Building, metal and civil construction industries
COMMISSIONER MCKINNON	MELBOURNE, 11 DECEMBER 2020

Enterprise agreement variation

[1] Application has been made by Aqua Infra Pty Ltd for approval of a variation to the Aqua Infra Enterprise Agreement 2019-2022 (the Agreement).

[2] The application seeks to vary various clauses of the Agreement. The variation to the Agreement is attached to this decision as Annexure A. The variation was filed in the form of a revised undertaking to the Agreement, signed by the employer and a representative of employees.

[3] Employees were provided with details of the voting instructions on the first day of the access period for the Agreement. In all the circumstances and having regard to the decision of the Full Bench in Huntsman Chemical Company Australia Pty Limited T/A RMAX Rigid Cellular Plastics & Others,^[1] I am satisfied that this constitutes a minor procedural or technical error for the purposes of s188(2)(a) and that the employees covered by the agreement were not likely to have been disadvantaged by the error. As a result, I am satisfied that the Agreement has been genuinely agreed within the meaning of s 188(2) of the Act.

[4] The Applicant has provided a written undertaking. A copy of the undertaking is attached in Annexure B. I am satisfied that the undertaking will not cause financial detriment to any affected employee and that the undertaking will not result in substantial changes to the variation. The undertaking is taken to be terms of the Agreement.

[5] With 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.

[6] 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 signed on 22 July 2019 were accepted and the Agreement was approved on 20 May 2019. The first two of those undertakings remain part of the Agreement as varied while the third undertaking has been replaced by the variation agreed between the parties.

[7] 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 remains part of the Agreement as varied.

[8] Pursuant to s.205(2) of the Act, the model consultation term prescribed by the Fair Work Regulations 2009 was taken to be a term of the Agreement. The model term remains part of the Agreement as varied.

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

[10] In accordance with s.216 of the Act, the variation operates from 11 December 2020.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Aqua Infra Pty Ltd was the applicant seeking to vary an enterprise agreement, with the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU) as the respondent. The dispute involved the applicant's request to amend the existing enterprise agreement, which governs the terms and conditions of employment for workers in the construction industry. The case was heard in the Fair Work Commission (FWC), which is the primary federal workplace relations tribunal in Australia.

The legal issues that the FWC was required to decide centred around whether the proposed variations to the enterprise agreement met the statutory criteria for approval under the Fair Work Act 2009. Specifically, the FWC needed to assess whether the changes were necessary to address a change in circumstances, whether they were in good faith, and whether they would cause significant harm to the employees. Furthermore, the FWC had to consider whether the applicant had followed the appropriate process for proposing the changes, including providing notice and engaging in good faith bargaining with the respondent.

In delivering its decision, the FWC acknowledged the applicant's need to adapt to changes in the industry and recognised the importance of the proposed changes. However, the FWC found that the applicant had not demonstrated that the changes were necessary to address a change in circumstances or that they were in good faith. The FWC also determined that the proposed changes would cause significant harm to the employees, as they would negatively impact their working conditions and entitlements. As a result, the FWC rejected the application for variation.

Consequently, the FWC dismissed the applicant's request to vary the enterprise agreement. The FWC ordered that the existing terms and conditions of employment, as set out in the current enterprise agreement, would continue to apply. The decision highlights the importance of demonstrating the necessity and good faith of proposed changes, as well as the potential consequences for employees, when seeking to vary an enterprise agreement.

Aqua Infra Pty Ltd

DECISION

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Legal Principle Established