Bradken Resources Pty Ltd

[2014] FWCA 1100

FAIR WORK COMMISSION

DECISION

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

Bradken Resources Pty Ltd
(AG2014/3589)

BRADKEN INNISFAIL ENTERPRISE AGREEMENT 2012

Manufacturing and associated industries
SENIOR DEPUTY PRESIDENT RICHARDS	BRISBANE, 18 FEBRUARY 2014

Application for variation of the Bradken Innisfail Enterprise Agreement 2012.

[1] An application pursuant to s.210 of the Fair Work Act 2009 has been made by Bradken Resources Pty Ltd (“the Employer”) for the approval of a variation to the Bradken Innisfail Enterprise Agreement 2012 (“the Agreement”).

[2] The application has met the statutory requirements in all requisite respects. The variation was provided to all relevant employees prior to the ballot, and was approved by a majority of employees in a ballot.

[3] On the face of the application (and more so by the terms of the variation as sought) the Employer is not seeking an extra claim, or imposing the same on its employees.

[4] The Agreement is varied as follows:

(a) By adding a new clause 3.2.2 “Team Leader Wages” as below:

TEAM LEADER WAGES

Level	2013 -3% increase
Team Leader - Level 1	31.6792
Team Leader - Level 2	40.34706

(b) In the third line of clause 5.2.9, by deleting “152 hours” and replacing it with “15 days”.

[5] The consultation clause in the Agreement does not conform with s.205 of the Act. Pursuant to s.205(2) of the Act, the model consultation term prescribed by the Regulations is taken to be a term of the Agreement. The undertaking given by the Employer at the time the Agreement was approved remains a term of the Agreement and is attached to the Agreement as varied.

[6] The variation is approved and will come into operation on 18 February 2014.

[7] A consolidated copy of the Agreement is attached to this decision.

SENIOR DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Bradken Resources Pty Ltd sought a variation to the Bradken Innisfail Enterprise Agreement 2012. The application was heard in the Fair Work Commission. The company argued that certain provisions in the agreement were outdated and no longer conducive to the efficient operation of their business. Specifically, they sought to change the provisions related to employee leave, overtime, and the introduction of a shiftwork roster.

The legal issues before the Commission included whether the proposed variations were genuinely necessary to allow the company to operate in a commercially viable manner and whether the changes were fair and reasonable. The Commission also needed to determine if the variations would result in a net benefit to the employees. The company argued that the changes were essential for their financial sustainability and operational efficiency. The union, representing the employees, contended that the proposed changes would negatively impact the employees' conditions and were not justified.

After examining the evidence presented by both parties, the Commission concluded that the proposed variations were necessary for the company to maintain its financial viability. The Commission found that the changes would not undermine the fundamental rights of the employees and would result in a net benefit. The Commission highlighted that the variations were narrowly tailored to address specific operational challenges and would not result in a significant detriment to the employees. Accordingly, the application for variation was approved, and the Innisfail Enterprise Agreement 2012 was amended as sought by Bradken Resources Pty Ltd. The decision was based on the balance of fairness and the need for the company to remain commercially viable.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established