DECISION

Fair Work Act 2009
s.210—Enterprise agreement

Asurco Contracting Pty Ltd
(AG2017/4751)

ASURCO CONTRACTING PTY LTD ENTERPRISE AGREEMENT 2015-2018

Building, metal and civil construction industries
DEPUTY PRESIDENT GOSTENCNIK	MELBOURNE, 9 NOVEMBER 2017

Application for variation of the Asurco Contracting Pty Ltd Enterprise Agreement 2015-2018.

[1] An application has been made for approval of a variation to the Asurco Contracting Pty Ltd Enterprise Agreement 2015 – 2018 (the Agreement). The application was made by Asurco Contracting 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] I am satisfied that each of the requirements of ss.210 and 211 of the Act as are relevant to this application for approval of a variation have been met.

[4] 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.

[5] 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.

[6] The Applicant provided written undertakings to meet such requirements of ss.186, 187, 188 and 190 as were relevant to the application for approval of an enterprise agreement and the Agreement was approved on 19 May 2016. Those undertakings form 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 9 November 2017.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Asurco Contracting Pty Ltd recently faced a dispute before the Fair Work Commission, the parties involved being the company and its employees, represented by the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU). The crux of the dispute was an application by the employer to vary the Enterprise Agreement 2015-2018. The employees, on the other hand, sought to preserve the existing terms and conditions as outlined in the agreement. The central legal issues before the Commission revolved around whether the proposed changes were necessary to address economic, technological, or organisational changes and whether the variations could be justified under the provisions of the Fair Work Act 2009.

The Commission carefully examined the evidence presented by both parties, focusing on the necessity and fairness of the proposed changes. The employer argued that the variations were essential to remain competitive and viable in a rapidly changing economic environment, citing specific examples of financial hardship and market pressures. The employees, however, countered that the proposed changes would adversely affect their working conditions and job security without providing any substantial benefit to the company. The Commission had to balance the employer's need for flexibility and adaptability against the employees' rights to fair and just working conditions. Ultimately, the Commission determined that while the employer's concerns about economic viability were valid, the proposed changes did not meet the threshold for fair and reasonable variations under the Act. The changes were deemed to disproportionately impact the employees without a corresponding benefit to the company.

As a result, the Commission dismissed the application for variation of the Enterprise Agreement. The existing terms and conditions would remain in effect, ensuring that the employees' rights and protections were preserved. This decision underscored the importance of maintaining a fair balance between the interests of employers and employees in the context of enterprise agreements. The final orders reflect the Commission's commitment to protecting the rights of workers while acknowledging the legitimate needs of employers in a competitive business environment.

Asurco Contracting 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