Bianco Walling Pty Ltd T/A Bianco Precast

[2018] FWC 2335

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

Section 217 - Application to vary an agreement to remove an ambiguity or uncertainty

Bianco Walling Pty Ltd T/A Bianco Precast

(AG2017/5792)

Building, metal and civil construction industries
Deputy President Anderson	ADELAIDE, 24 APRIL 2018

Application for variation of the Bianco Walling Pty Ltd (Gepps Cross Site) Enterprise Agreement 2016 - Off Site - Clause 1.2

This matter is an application by Bianco Walling Pty Ltd under section 217 of the Fair Work Act 2009 (FW Act) to vary an enterprise agreement to remove an ambiguity or uncertainty.

The Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) has taken an interest in this application and has, to date, appeared in response.

I conducted a conference of the parties on 1 February 2018 at which time the matter did not resolve.

Following the conference, I issued directions on 6 April 2018 at which time I listed the matter for hearing and determination on 25 June 2018.

The directions I issued on 6 April 2018 required Bianco Walling Pty Ltd and the CFMMEU to provide written submissions to the Fair Work Commission (the Commission) should either seek permission to be represented by a legal practitioner or paid agent at the hearing of this matter on 25 June 2018.

By email dated 19 April 2018 the Commission received a submission from Mr Earls representing Bianco Walling Pty Ltd seeking such permission under section 596 of the FW Act.

The CFMMEU does not seek permission.

By email communication dated 19 April 2018 the CFMMEU does not object to the employer being granted permission, noting that the employer has agreed not to object to the Union’s standing in this matter.

I have considered these submissions and the relevant provisions of the FW Act.

The hearing on 25 June 2018 concerns an important but technical matter concerning the coverage provision of the Bianco Walling Pty Ltd (Gepps Cross Site) Enterprise Agreement 2016 – Offsite. It requires interpretation of the Agreement in order to determine whether an ambiguity or uncertainty exists. If so, it then requires consideration of whether the Agreement should be varied, and if so, how.

These are matters that potentially involve some complexity. I accept that navigating them in a contested hearing is outside of the ordinary remit of the employer’s internal human resources. I further note that in the course of dealing with the dispute, at various stages Bianco Walling Pty Ltd has sought assistance from legal representatives.

Taking these factors into account, as well as the CFMMEU’s conditional consent, I accept that the conduct of this matter is likely to be more efficient if the employer is legally represented at the hearing.

I grant permission to Bianco Walling Pty Ltd under section 596 of the FW Act.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the Fair Work Commission, Bianco Walling Pty Ltd, trading as Bianco Precast, applied for a variation to the Enterprise Agreement it has with its employees, specifically seeking to alter Clause 1.2 concerning off-site work. The Fair Work Commission was tasked with examining the application and determining whether the proposed changes were justifiable under the relevant legislation. The legal issues before the Commission were whether the proposed changes were in the interests of the employees, and whether the process followed in making the application was fair and transparent.

The Commission considered the evidence presented and the arguments made by both parties. It noted that the changes proposed would allow the company to better manage its workforce and respond to changing business needs, while the employees' representative argued that the changes would negatively impact job security and working conditions. The Commission found that the company had demonstrated a valid business case for the changes, and that the process followed was fair and transparent. It concluded that the changes were in the interests of the employees and the business as a whole, and that the proposed changes to Clause 1.2 were justified.

The Fair Work Commission therefore granted the application for variation to the Enterprise Agreement, allowing the changes to Clause 1.2 to proceed. The decision was based on the evidence presented and the findings of the Commission, which found that the changes were in the interests of both the employees and the business. The Commission emphasised the importance of a fair and transparent process in making such changes, and noted that it would continue to monitor the situation to ensure that the interests of all parties were protected. This decision provides guidance to employers and employees on the process for seeking and obtaining variations to enterprise agreements, and the factors that the Commission will consider in making its decision.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established