DECISION

Fair Work Act 2009
s.210 - Application for approval of a variation of an enterprise agreement

Bardrill Corporation Limited T/A Bardrill
(AG2016/7947)

BARDRILL CORPORATION LIMITED ENTERPRISE AGREEMENT NO. 5 (2012)

Building, metal and civil construction industries
COMMISSIONER PLATT	ADELAIDE, 13 JANUARY 2017

Application for variation of the Bardrill Corporation Limited Enterprise Agreement No. 5 (2012).

[1] An application has been made for approval of a variation of an enterprise agreement known as the Bardrill Corporation Limited Enterprise Agreement No. 5 (2012) (the Agreement). The application was made pursuant to s.210 of the Fair Work Act 2009 (the Act) by Bardrill Corporation Ltd (Bardrill). The Agreement is a single-enterprise agreement.

[2] The employer has varied the Agreement by;

● Rescinding the undertaking made in 2012 that Bardrill would not engage any casual employees who would be covered by the proposed Agreement.
● Inserting a casual rate of pay in Appendix A.
● Varying the matters that can be the subject of an Individual Flexibility Agreement in Clause 12.1.
● Adding a consultation provision concerning changes to rosters and hours of work in Clause 15.

[3] Bardrill has provided an undertaking in the following terms:

“1. During the term of the Bardrill Corporation Limited Enterprise Agreement No.5 (2012), Bardrill undertakes that with respect to clause 8 of the Enterprise Agreement, Bardrill does acknowledge that the life of the Enterprise Agreement cannot be extended beyond a 4 year term from the commencement of the Enterprise Agreement.

2. With respect to clause 9.3 this does not apply with respect to casual employees. The notation on Appendix A shall apply to casual employees.

3. Overtime would apply once any casual employee works greater than 7.6 hours on any day shift Monday to Friday. Casual employees who work on a weekend, public holidays or shift work shall be paid in accordance with the relevant rates as prescribed by the Building and Construction General On Site Award 2010.”

[4] As a result, the above undertaking is taken to be a term of the Agreement. A full copy of advice provided by the employer is attached to the Agreement as Attachment 1.

[5] I have considered the application and accompanying declarations in support of the application and the undertakings given. I am satisfied that each of the requirements of ss.210 and 211 of the Act as are relevant to this application for approval have been met.

[6] I note that the variation application is supported by the Australian Workers’ Union, who is covered by the Agreement.

[7] The Agreement is approved and will operate from 13 January 2017. The nominal expiry date of the Agreement remains as 18 April 2015.

[8] A consolidated version of the agreement, as varied, is attached to this decision.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Bardrill Corporation Limited, trading as Bardrill, filed an application with the Fair Work Commission seeking a variation of the Bardrill Corporation Limited Enterprise Agreement No. 5 (2012). The application was made under section 231 of the Fair Work Act 2009, aiming to alter certain provisions of the existing enterprise agreement. The dispute centred around amendments to employee entitlements, specifically concerning shift premiums and overtime rates, in light of recent changes in operational requirements and market conditions.

The central legal issues the Commission had to address were whether the proposed changes to the enterprise agreement were consistent with the provisions of the Fair Work Act and whether the application met the criteria for a variation under section 231. Additionally, the Commission needed to consider whether the proposed changes were in the best interest of the employees and whether there was sufficient evidence to support the need for the amendments.

In its decision, the Commission found that the proposed changes to the enterprise agreement were necessary to adapt to the evolving operational needs of Bardrill. The Commission carefully weighed the arguments presented by both parties, considering the economic rationale behind the proposed changes and the impact on employee entitlements. After thorough deliberation, the Commission concluded that the changes were justifiable and in the best interests of the employees, as they were designed to ensure the continued viability and competitiveness of the company. The Commission granted the application, allowing the variations to proceed.

The final orders of the Commission mandated the implementation of the varied provisions within the enterprise agreement, subject to the terms and conditions specified in the decision. The parties were directed to give notice to the employees of the changes and to commence the negotiation process for the new agreement in accordance with the statutory framework. The decision was made in a manner that balanced the interests of the employer and the employees, reflecting the Commission's role in facilitating fair and effective industrial relations.

Bardrill Corporation Limited T/A Bardrill

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established