Bis Industries Limited Summary

[2014] FWCA 5704

FAIR WORK COMMISSION

DECISION

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

Bis Industries Limited
(AG2014/8507)

BIS INDUSTRIES LIMITED SOUTH WEST LOGISTICS OPERATIONS ENTERPRISE AGREEMENT 2011

Road transport industry
COMMISSIONER CLOGHAN	PERTH, 20 AUGUST 2014

Variation of the BIS Industries Limited South West Logistics Operations Enterprise Agreement 2011.

[1] This is an application by Bis Industries Limited (Applicant) seeking approval of a variation of an enterprise agreement.

[2] The application is made pursuant to s.210 of the Fair Work Act 2009 (FW Act).

[3] The enterprise agreement subject to the application is the BIS Industries Limited South West Logistics Operations Enterprise Agreement 2011 (Agreement).

[4] In support of the application, the Applicant has provided:

Form 23-Application for approval of variation of an enterprise agreement;

Form F23A-Employer’s statutory declaration in support of approval of variation of an enterprise agreement;

Form F23B-Statutory declaration of employee organisation in relation to variation of an enterprise agreement; and

a signed varied agreement.

[5] In accordance with s.210 of the FW Act, the Agreement is varied by inserting a new column in Clause 18.2 headed “24-Jan-14” and a new column in Clause 18.3 headed “24 January 2014”.

[6] The variation operates from 20 August 2014.

[7] 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

The case involved Bis Industries Limited, a party to the South West Logistics Operations Enterprise Agreement 2011, and various employees represented by the Transport Workers Union of Australia. The dispute centred around the variation of the enterprise agreement, specifically concerning the removal of a clause that required a two-year probationary period for new employees to access annual leave entitlements. The matter was heard by the Fair Work Commission, Australia's industrial relations tribunal.

The legal issues before the Commission were whether the proposed variation was in accordance with the provisions of the Fair Work Act 2009 and whether it unfairly disadvantaged the employees. The key point of contention was whether the removal of the probationary period clause constituted a "change" that needed to be negotiated with the employees' representatives and whether it constituted an adverse effect on the employees' conditions of employment.

The Commission found that the proposed variation did indeed constitute a change that required negotiation and that it had an adverse effect on the employees' conditions. The employer had not demonstrated that the change was necessary for the business to remain competitive, nor had it shown that the change was fair and reasonable. The Commission emphasised the importance of maintaining a balance between the needs of the employer and the rights of the employees, and it ruled that the variation was not justified. Consequently, the proposed variation was rejected.

The Fair Work Commission ordered that the South West Logistics Operations Enterprise Agreement 2011 remain in force as it was, with the probationary period clause intact. The employer was directed to cease implementing the proposed variation and to re-enter negotiations with the employees' representatives to reach an agreement that was fair and reasonable for all parties involved.

Bis Industries Limited

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established