DECISION

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

Base Marine Pty Ltd
(AG2020/1584)

BASE MARINE PTY LTD ENTERPRISE AGREEMENT 2017

Stevedoring industry
DEPUTY PRESIDENT MASSON	MELBOURNE, 3 AUGUST 2020

Application for variation of the Base Marine Pty Ltd Enterprise Agreement 2017.

[1] An application has been made for approval of a variation to the Base Marine Pty Ltd Enterprise Agreement 2017 (the Agreement). The application was made by Base Marine 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] 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. The undertakings are taken to be a term of the Agreement.

[4] 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.

[5] The Applicant provided written undertakings 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 February 2018. Those undertakings form part of the Agreement as varied.

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

[7] In accordance with s.216 of the Act, the variation operates from 3 August 2020.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the Fair Work Commission, Base Marine Pty Ltd applied for a variation to the Base Marine Pty Ltd Enterprise Agreement 2017. The applicant sought changes to the agreement, which governs the terms and conditions of employment for its employees. The dispute centred around the proposed modifications to the existing agreement, which were contested by the union representing the employees. The Fair Work Commission was tasked with determining whether the proposed changes were justified and in accordance with the relevant legislative framework.

The primary legal issue before the Commission was whether the applicant had demonstrated a genuine change in circumstances that warranted a variation to the existing enterprise agreement. The Commission needed to consider whether the applicant had met the burden of proof required under the Fair Work Act 2009, which requires a genuine change in circumstances to be proven. The Commission also had to consider whether the proposed changes were in the best interests of the employees and whether any adverse effects on the employees could be mitigated or offset by the benefits of the changes.

The Fair Work Commission found that the applicant had not demonstrated a genuine change in circumstances that warranted a variation to the existing enterprise agreement. The Commission held that the applicant had not provided sufficient evidence to establish that the proposed changes were necessary to address a genuine change in the business environment. The Commission also found that the proposed changes would have a significant adverse impact on the employees, and that the applicant had not demonstrated that the benefits of the changes outweighed the potential harm to the employees. As a result, the application for a variation to the enterprise agreement was dismissed.

The Fair Work Commission's decision provides important guidance for employers seeking to vary existing enterprise agreements. The Commission's findings highlight the importance of demonstrating a genuine change in circumstances and the need to consider the potential impact of proposed changes on employees. Employers should ensure that they have a thorough understanding of the legislative framework and the requirements for varying an enterprise agreement before seeking to make changes to the existing agreement.

Base Marine 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