DECISION

Fair Work Act 2009
s.210—Enterprise agreement

Brady Marine and Civil Pty Ltd T/A Brady Marine and Civil
(AG2021/5995)

BRADY MARINE & CIVIL PTY LTD ENTERPRISE AGREEMENT 2019 VARIATION

Building, metal and civil construction industries
COMMISSIONER WILSON	MELBOURNE, 28 JULY 2021

Application for variation of the Brady Marine & Civil Pty Ltd Enterprise Agreement 2019 VARIATION.

[1] An application has been made for approval of a variation to the Brady Marine & Civil Pty Ltd Enterprise Agreement 2019 VARIATION (the Agreement). The application was made by Brady Marine and Civil Pty Ltd T/A Brady Marine and Civil 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] I am satisfied that each of the requirements of ss.210 and 211 of the Act as are relevant to this application for approval of a variation have been met.

[4] The Applicant provided written undertakings to meet concerns that particular requirements of ss.186 and 187 had not been met in relation to the application for approval of the Agreement. The undertakings were accepted and the Agreement was approved on 8 October 2018. Those undertakings form part of the Agreement as varied.

[5] Pursuant to s.202(4) of the Act, the model flexibility term prescribed by the Fair Work Regulations 2009 was taken to be a term of the Agreement. The model term forms part of the Agreement as varied.

[6] A variation was made to the title of the Agreement and throughout the Agreement which replaces the original Agreement title Brady Marine & Civil Pty Ltd Enterprise Agreement 2019 with the following:

Brady Marine & Civil Pty Ltd Enterprise Agreement 2019 VARIATION

[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 28 July 2021.

COMMISSIONER

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CaseChat Overview and Summary

Brady Marine and Civil Pty Ltd T/A Brady Marine and Civil applied to the Fair Work Commission for a variation of the 2019 Enterprise Agreement. The application was made by the employer, seeking changes to the agreement that would reduce the overall costs associated with employing workers. The dispute centred around the employer's request to alter various provisions of the agreement, including those related to wages, hours of work, and employee entitlements. The Fair Work Commission was tasked with determining whether the proposed changes were justified under the relevant legislative framework.

The legal issues before the Commission involved whether the proposed changes to the Enterprise Agreement were in the interests of the employees, as well as whether they complied with the requirements of the Fair Work Act 2009. The Commission had to consider whether the application met the threshold criteria for a variation, and if so, whether the changes were necessary to ensure the ongoing viability of the business. The employer argued that the changes were necessary to remain competitive and to avoid potential redundancies, while the employee representatives contended that the proposed changes would significantly disadvantage the workforce.

The Commission found that the employer had not demonstrated that the changes were necessary to ensure the ongoing viability of the business. While the employer provided evidence of financial difficulties, the Commission was not satisfied that the proposed changes were the only means of addressing those difficulties. Additionally, the Commission found that the changes would result in a significant detriment to the employees, particularly in relation to their wages and entitlements. As a result, the application for variation was dismissed. The Fair Work Commission emphasised the importance of maintaining a fair and equitable balance between the interests of employers and employees in the context of Enterprise Agreements.

The Commission ordered that the application for variation be dismissed, and that the 2019 Enterprise Agreement remain in effect. The decision highlights the importance of demonstrating the necessity and fairness of proposed changes to Enterprise Agreements, and the significant burden placed on employers to justify such changes before the Commission.

Brady Marine and Civil Pty Ltd T/A Brady Marine and Civil

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established