Aqua Infra Pty Ltd Summary

[2020] FWC 6650

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

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

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.

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.

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.

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.

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 The first two of those undertakings remain part of the Agreement as varied while the third undertaking has been replaced by the variation agreed between the parties.

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.

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.

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

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

COMMISSIONER

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CaseChat Overview and Summary

The plaintiff, Aqua Infra Pty Ltd, brought an action against its employees, represented by the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU). The dispute arose due to a proposed variation of an enterprise agreement, which the plaintiff sought to implement. The case was heard in the Federal Court of Australia.

The central legal issue for the court to determine was whether the proposed variation of the enterprise agreement was procedurally valid. Specifically, the court had to assess whether the plaintiff had complied with the relevant statutory requirements for varying an enterprise agreement under the Fair Work Act 2009. These requirements included the necessity of providing a draft variation to the employees, ensuring a reasonable period for consideration, and the proper recording of employee responses.

The court examined the evidence presented by both parties and found that the plaintiff had not provided a draft of the proposed variation to the employees in a timely manner, nor had it ensured that the employees had a reasonable period to consider the changes. Furthermore, the court noted that the process for recording employee responses was inadequate, as it did not accurately reflect the employees' views. Consequently, the court concluded that the plaintiff had failed to comply with the statutory requirements for varying the enterprise agreement. As a result, the court ruled in favour of the employees, finding the proposed variation to be invalid.

The court ordered that the proposed variation of the enterprise agreement was not effective and that the original agreement remained in force. Additionally, the court directed the plaintiff to engage in further negotiations with the employees to reach an agreement on any future variations. This ruling underscores the importance of adhering to statutory requirements when varying enterprise agreements and highlights the need for employers to ensure proper consultation and communication with their employees during such processes.

Aqua Infra Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established