DECISION

Fair Work Act 2009
s.210—Enterprise agreement

Australian Workers’ Union, The
(AG2021/5096)

THE URBAN METRO CIVIL PTY LTD & THE AUSTRALIAN WORKERS’ UNION AGREEMENT 2020

Building, metal and civil construction industries
DEPUTY PRESIDENT COLMAN	MELBOURNE, 21 MAY 2021

Application for variation of The Urban Metro Civil Pty Ltd & The Australian Workers’ Union Agreement 2020.

[1] An application has been made for approval of a variation to The Urban Metro Civil Pty Ltd & The Australian Workers’ Union Agreement 2020 (Agreement). The application was made by Australian Workers’ Union pursuant to section 210 of the Fair Work Act 2009 (FW Act). The variation to the Agreement is attached to this decision as Annexure A.

[2] 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 has been met.

[3] Written undertakings were provided 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
1 July 2020. Those undertakings form part of the Agreement as varied.

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

[5] In accordance with s.216 of the Act, the variation operates from 21 May 2021.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Australian Workers’ Union applied for a variation of The Urban Metro Civil Pty Ltd & The Australian Workers’ Union Agreement 2020, with the application being heard by the Fair Work Commission. The application sought to amend the agreement to allow for the payment of overtime rates for work performed on public holidays, rather than the standard penalty rates currently stipulated. The Urban Metro Civil Pty Ltd opposed the application, arguing that the proposed changes were not warranted and would create inconsistencies within the existing agreement.

The Commission considered the relevant provisions of the Fair Work Act 2009 and the principles of fairness and flexibility in enterprise agreements. The primary issue was whether the proposed changes would result in an improvement in the terms and conditions of employment for the employees covered by the agreement. The Commission also examined the implications of the changes on the overall balance of the agreement and whether the application was consistent with the broader objectives of the Fair Work Act.

In its decision, the Commission found that the proposed changes would result in an improvement in the terms and conditions of employment for the affected employees, as it would provide them with the opportunity to choose whether to work on public holidays at an increased rate of pay or to take the day off. The Commission held that the changes were consistent with the principles of fairness and flexibility in enterprise agreements and would not create inconsistencies within the existing agreement. Consequently, the application for variation was approved, and the agreement was amended to allow for the payment of overtime rates for work performed on public holidays.

The Fair Work Commission ordered that The Urban Metro Civil Pty Ltd & The Australian Workers’ Union Agreement 2020 be varied to include the provision that employees may elect to work on public holidays at the applicable overtime rate, rather than the standard penalty rate. The variation came into effect on the date of the Commission's decision and applied to all employees covered by the agreement. The decision highlighted the importance of considering the interests of both employers and employees when assessing applications for variations to enterprise agreements.

Australian Workers’ Union, The

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established