DECISION

Fair Work Act 2009
s.210—Enterprise agreement

Brady Marine and Civil Pty Ltd T/A Brady Marine and Civil
(AG2018/1083)

BRADY MARINE & CIVIL PTY LTD ENTERPRISE AGREEMENT 2015-2019

Building, metal and civil construction industries
DEPUTY PRESIDENT GOSTENCNIK	MELBOURNE, 2 JULY 2018

Application for variation of the Brady Marine & Civil Pty Ltd Enterprise Agreement 2015-2019.

[1] An application has been made for approval of a variation to the Brady Marine & Civil Pty Ltd Enterprise Agreement 2015-2019. The title of the Agreement has been varied to the Brady Marine & Civil Pty Ltd Enterprise Agreement 2015-2019 VARIATION (the Agreement) (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] 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 variation is approved and the consolidated version of the Agreement, as varied, is attached to this decision.

[6] In accordance with s.216 of the Act, the variation operates from 2 July 2018.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Brady Marine and Civil Pty Ltd, trading as Brady Marine and Civil, applied for a variation of their Enterprise Agreement 2015-2019 with Maritime Union of Australia. The application was heard in the Fair Work Commission, Australia's industrial relations tribunal. The employer sought changes to the agreement, including adjustments to the hours of work, penalty rates, and shift patterns, arguing that the current conditions were unsustainable due to economic pressures and operational inefficiencies. The union opposed the application, maintaining that any changes would adversely affect employee conditions and job security.

The primary legal issues before the Commission were whether the proposed changes were justified under the criteria set out in the Fair Work Act 2009, specifically focusing on the "better off overall test" and the requirement that the changes be necessary to ensure the continued viability of the business. The Commission also had to consider whether the application met the procedural requirements for an enterprise agreement variation. The employer argued that the changes were essential for maintaining business viability and meeting future operational needs, while the union contended that the application did not meet the legislative standards for a variation.

The Commission found that the employer had not adequately demonstrated that the proposed changes were necessary for the continued viability of the business. The evidence provided was insufficient to satisfy the "better off overall test," as the union had presented a robust argument that the changes would negatively impact employees without clear benefits to the business. Additionally, the Commission noted procedural deficiencies in the application, particularly regarding the provision of necessary information and the engagement process with the union. As a result, the application for variation was dismissed.

No orders were made in favour of the applicant. The existing Enterprise Agreement 2015-2019 remained in effect, and the Commission directed the parties to continue negotiations in good faith to reach a mutually acceptable agreement.

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