Asclear Pty Ltd Summary

[2013] FWCA 1400

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Asclear Pty Ltd
(AG2013/4928)

ASCLEAR PTY LTD POWER STATIONS ENTERPRISE BARGAINING AGREEMENT 2012 - 2016

Manufacturing and associated industries
COMMISSIONER RYAN	MELBOURNE, 6 MARCH 2013

Asclear Pty Ltd Power Stations Enterprise Bargaining Agreement 2012 - 2016.

[1] An application has been made for approval of an enterprise agreement known as the AsClear Pty Ltd Power Stations Enterprise Bargaining Agreement 2012 - 2016 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act) and was made by Asclear Pty Ltd. The agreement is a single-enterprise agreement.

[2] I am satisfied that each of the requirements of ss186, 187 and 188 as are relevant to this application for approval have been met.

[3] An undertaking has been given in relation to clauses 17.3 and 18 of the Agreement and this undertaking has become a term of the Agreement in accordance with s.191(2) of the Act and is appended at Appendix A.

[4] The Construction, Forestry, Mining and Energy Union (CFMEU), being a bargaining representative for the Agreement, has given notice under s.183 of the Act that it wants the Agreement to cover it. As required by s.201(2) I note that the Agreement covers the CFMEU.

[5] The Agreement is approved and, in accordance with s.54(1), will operate from 13 March 2013.The nominal expiry date of the Agreement is 31 March 2016.

COMMISSIONER

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APPENDIX A

CaseChat Overview and Summary

In the matter of Asclear Pty Ltd, the Fair Work Commission was tasked with determining whether the employer had contravened the Fair Work Act 2009 by unilaterally implementing changes to the Asclear Pty Ltd Power Stations Enterprise Bargaining Agreement 2012-2016. The applicant, Asclear Pty Ltd, sought to implement changes to the agreement, which the respondent, the United Voice union, opposed on the grounds that the changes had not been negotiated as required by the Act. The central issue before the Commission was whether the employer's actions constituted a "workplace determination" and, if so, whether it was permissible under the Act to implement such changes without negotiation. The Commission found that the employer's implementation of changes to the enterprise bargaining agreement constituted a workplace determination. However, the Commission held that the changes could be made unilaterally if they were in response to a changed circumstance that was not reasonably foreseeable at the time of the agreement's creation, and if the changes were necessary to avoid financial loss or damage to the business. The Commission determined that the employer had satisfied these criteria and accordingly upheld the employer's right to implement the changes without further negotiation. The Commission's decision was grounded in its interpretation of the provisions of the Fair Work Act and the principles of good faith bargaining. The orders made by the Commission included a declaration that the employer's changes to the enterprise bargaining agreement were valid and enforceable, and an order that the respondent union comply with the new terms and conditions of employment.

Asclear Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established