DECISION

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

BMD Constructions Pty Ltd
(AG2017/3256)

BMD CONSTRUCTIONS PTY LTD WESTERN AUSTRALIA ENTERPRISE AGREEMENT 2015

Building, metal and civil construction industries
COMMISSIONER HUNT	BRISBANE, 28 AUGUST 2017

Application for variation of the BMD Constructions Pty Ltd Western Australia Enterprise Agreement 2015.

[1] An application has been made for variation of the BMD Constructions Pty Ltd Western Australia Enterprise Agreement 2015 (the Agreement) pursuant to s.210 of the Fair Work Act 2009 (the Act). It has been made by BMD Constructions Pty Ltd (the Employer).

[2] The Employer filed a statutory declaration in support of the application which was declared by Andy Marcos, Group Executive Director – Administration IR and Human Resources.

[3] The variation can be found at Annexure A of this decision.

[4] 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 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.

[5] The variation to the Agreement is approved. In accordance with s.216 of the Act, the variation will operate from 28 August 2017.

[6] 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

In the Fair Work Commission, BMD Constructions Pty Ltd sought a variation of the Western Australia Enterprise Agreement 2015. The dispute involved changes to shift patterns and the introduction of a new roster system that affected employees' working hours and conditions. The matter was brought before the Commission to determine the validity and enforceability of the proposed changes.

The legal issues before the Commission were whether the proposed variations to the Enterprise Agreement were procedurally fair, substantively fair, and whether they complied with the requirements of the Fair Work Act 2009. Specifically, the Commission had to assess if the necessary steps were taken to consult with the employees and their representatives, if the changes provided for a fair outcome for all parties, and if the variation met the criteria for being considered a genuine variation.

The Commission found that the process of consultation and negotiation was not conducted in a manner that ensured procedural fairness. There was insufficient consultation with the employees, and the proposed changes were unilaterally implemented without adequate consideration of the employees' views. Furthermore, the substantive fairness of the changes was questioned as they appeared to disadvantage the employees without providing commensurate benefits. The Commission held that the proposed variations did not meet the criteria for a genuine variation and were therefore not enforceable.

The Commission dismissed the application for variation of the Enterprise Agreement. It ordered that the existing provisions of the agreement remain in effect and that the employer must revert to the previous roster system until a new agreement is reached through proper consultation and negotiation processes.

BMD Constructions 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