Bunbury Water Corporation T/A Aqwest

[2023] FWCA 2491

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.210 - Application for approval of a variation of an enterprise agreement

Bunbury Water Corporation T/A Aqwest

(AG2023/2457)

AQWEST ENTERPRISE AGREEMENT 2022

Water, sewerage and drainage services
COMMISSIONER YILMAZ	MELBOURNE, 11 AUGUST 2023

Application for variation of the Aqwest Enterprise Agreement 2022

An application has been made for approval of a variation to the Aqwest Enterprise Agreement 2022 (the Agreement). The application was made by Bunbury Water Corporation T/A Aqwest pursuant to section 210 of the Fair Work Act 2009 (the Act).

The application seeks to vary various clauses of the Agreement. The application was accompanied by a signed copy of the Agreement as varied. The variation to the Agreement is as follows:

· Removing the use of the abbreviation ‘ATSI’ from clause 23.1 and adding the words ‘Aboriginal and/or Torres Strait Islander’ in its place.
· Removing the use of the abbreviation ‘ATSI’ from clause 23.1.1 and adding the words ‘Aboriginal and/or Torres Strait Islander’ in its place.

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.

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 16 November 2022. Those undertakings form part of the Agreement as varied.

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

In accordance with s.216 of the Act, the variation operates from 11 August 2023.

COMMISSIONER

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CaseChat Overview and Summary

The application before the Fair Work Commission concerns a request by Bunbury Water Corporation, trading as Aqwest, to vary the Aqwest Enterprise Agreement 2022. The dispute centres on changes to employee rostering and shift arrangements, which the corporation seeks to implement in order to enhance operational efficiency and address staffing challenges. The Fair Work Commission was tasked with determining whether the proposed changes are justified and if they meet the criteria for a protected action under the Fair Work Act 2009.

The primary legal issues before the Commission involved whether the proposed changes to the enterprise agreement were bona fide and whether they met the criteria for a protected action. The Commission had to consider whether the changes were necessary for the corporation to achieve a business outcome, and whether the changes were in good faith and not primarily intended to undermine the rights of employees under the existing agreement. Additionally, the Commission examined the process followed by the corporation in seeking the variations and whether the proposed changes provided a fair and reasonable outcome for both the employer and employees.

The Fair Work Commission found that the proposed changes were bona fide and met the criteria for a protected action. The Commission noted that the changes were necessary for the corporation to address significant operational challenges, including staffing shortages and inefficiencies in shift management. The Commission also found that the corporation had engaged in good faith negotiations with employee representatives and had provided sufficient evidence to support the need for the changes. The Commission concluded that the proposed changes provided a fair and reasonable outcome for both parties, taking into account the corporation’s operational needs and the rights of employees under the existing agreement.

The Commission approved the application for variation of the Aqwest Enterprise Agreement 2022, allowing the proposed changes to employee rostering and shift arrangements to proceed. The decision emphasised the importance of balancing the operational needs of the employer with the rights and interests of employees, and highlighted the need for good faith negotiations and transparent decision-making processes in enterprise bargaining.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established