DECISION

Fair Work Act 2009
s.210—Enterprise agreement

Bourke Air Pty Ltd
(AG2018/3112)

BOURKE AIR PTY LTD AND CEPU - PLUMBING DIVISION VICTORIAN BRANCH ENTERPRISE AGREEMENT 2016 -2019

Plumbing industry
DEPUTY PRESIDENT GOSTENCNIK	MELBOURNE, 3 DECEMBER 2018

Application for variation of the Bourke Air Pty Ltd and CEPU - Plumbing Division Victorian Branch Enterprise Agreement 2016 -2019.

[1] An application has been made for approval of a variation to the Bourke Air Pty Ltd and CEPU - Plumbing Division Victorian Branch Enterprise Agreement 2016 -2019 (the Agreement). The application was made by Bourke Air 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.

[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 application was not lodged within 14 days after the variation was made. Pursuant to s.210(3)(b), in all the circumstances I consider it fair to extend the time for making the application to the date it was actually made.

[6] The copy of the Variation lodged contained an error at variation 34. On 8 November 2018, the Applicant filed an amended version of the Agreement pursuant to s.586 of the Act. I am satisfied that the correction should be made and that it is appropriate to do so pursuant to s.586 of the Act.

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

[8] In accordance with s.216 of the Act, the variation operates from 3 December 2018.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The applicant, Bourke Air Pty Ltd, sought to vary the Bourke Air Pty Ltd and CEPU - Plumbing Division Victorian Branch Enterprise Agreement 2016-2019. The dispute was brought before the Fair Work Commission, the tribunal tasked with resolving employment disputes under Australian industrial relations law. The applicant aimed to alter the agreement to better suit its operational needs, while the respondent, CEPU, argued against the proposed changes, asserting they would adversely affect the employees' terms and conditions.

The central legal issue was whether the applicant had met the threshold requirements to justify a variation of the enterprise agreement under the Fair Work Act 2009. Specifically, the tribunal had to determine if the proposed changes would result in a net benefit to the employees and if the changes were necessary to facilitate a significant economic, technological, organisational, or structural change. The tribunal also considered whether the changes would be reasonably necessary to facilitate a significant economic, technological, organisational, or structural change, and if the applicant had genuinely attempted to negotiate the changes with the respondent.

In its decision, the tribunal found that the applicant had not sufficiently demonstrated that the proposed changes would result in a net benefit to the employees or that the changes were necessary to facilitate a significant economic, technological, organisational, or structural change. The tribunal also found that the applicant had not genuinely attempted to negotiate the changes with the respondent. As a result, the tribunal rejected the application for variation, upholding the existing enterprise agreement.

The tribunal's decision was based on the evidence presented and the criteria set out in the Fair Work Act 2009. The tribunal emphasised the importance of genuine negotiation and the need for a net benefit to employees in determining whether to approve a variation of an enterprise agreement. The tribunal also noted that the applicant had not provided sufficient evidence to support its application, and that the proposed changes would not result in a net benefit to the employees or facilitate a significant change. The tribunal's decision reinforces the importance of meeting the threshold requirements for varying an enterprise agreement and the need for genuine negotiation between the parties.

Bourke Air 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