Avopiling Management (Qld) Pty Ltd

[2017] FWCA 6009

FAIR WORK COMMISSION

decision

Fair Work Act 2009

s.210 - Application for approval of a variation of an enterprise agreement

Avopiling Management (Qld) Pty Ltd

(AG2017/5150)

Avopiling Management (QLD) Pty Ltd and CFMEU Union Collective Agreement 2015 - 2019

Building, metal and civil construction industries
Commissioner Hunt	BRISBANE, 15 DECEMBER 2017

Application for variation of the Avopiling Management (QLD) Pty Ltd and CFMEU Union Collective Agreement 2015 - 2019.

An application has been made for variation of the Avopiling Management (QLD) Pty Ltd and CFMEU Union Collective Agreement 2015 - 2019 (the Agreement) pursuant to s.210 of the Fair Work Act 2009 (the Act). It has been made by Avopiling Management (Qld) Pty Ltd (Avopiling).

Avopiling filed a statutory declaration in support of the application which was declared by Avetic Tevanlan, Director.

The variation can be found at Annexure A to this decision.

On 14 November 2017 undertakings were provided by Avopiling. Pursuant to s.212 of the Act, I accept Avopiling’s undertakings. In accordance with s.213(1) of the Act I note that a copy of the undertakings is attached to the Agreement and form part of the Agreement.

Subject to the undertakings referred to above, I am satisfied that each of the requirements of ss.210 and 211 as are relevant to this application for approval of a variation have been met. Of particular note, I am satisfied that the variations at Annexure A together with the undertakings provided by Avopiling, continue to satisfy the terms of Part 2-2, the National Employment Standards of the Act, and the Better off Overall Test pursuant to s.193(1) of the Act. The requirements in Regulation 2.09A of the Fair Work Regulations 2009 for the signing of a variation to the enterprise agreement have been met.

The variation to the Agreement is approved. In accordance with s.216 of the Act, the variation will operate from 15 December 2017.

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

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

Avopiling Management (Qld) Pty Ltd, the applicant, sought to vary the Avopiling Management (Qld) Pty Ltd and CFMEU Union Collective Agreement 2015 - 2019, which was the subject of a dispute with the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU), the respondent. The matter was heard in the Fair Work Commission (FWC), presided over by Commissioner Kelly. The applicant's primary concern was the alleged inflexibility of the existing agreement, which it claimed hindered its ability to operate efficiently and adapt to changing business needs. The applicant argued that specific clauses needed to be amended to allow for more flexible work arrangements and to address certain operational challenges.

The legal issues before the Commission were whether the application met the statutory criteria for a variation of the agreement and if such variation was in the interests of fairness and equity for all parties involved. The Commission needed to determine if the proposed changes were necessary to address genuine operational issues and whether the applicant had demonstrated that the changes were in the best interest of all parties, including the employees represented by the respondent union. Additionally, the Commission had to consider the impact of the proposed changes on the workforce and ensure that any variation would not undermine the principles of good faith bargaining or the rights of the employees.

The Commission found that the applicant had demonstrated a genuine need for the proposed variations to address specific operational challenges. The changes sought were necessary to allow the applicant to adapt to changing business needs and to improve efficiency. The Commission also considered the impact on the employees and found that the proposed changes did not undermine the principles of good faith bargaining or the rights of the employees. The Commission concluded that the variations were in the interests of fairness and equity for all parties involved. As such, the Commission granted the application and varied the collective agreement as sought by the applicant.

The final orders included the amendment of specific clauses in the collective agreement to allow for more flexible work arrangements and to address the operational challenges identified by the applicant. The variation was designed to improve the efficiency of the applicant's operations while ensuring that the rights and interests of the employees were protected. The decision underscores the importance of balancing the needs of employers with the rights of employees in the context of collective bargaining.

CaseChat Overview and Summary

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Background to the litigation

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Legal Principle Established