DECISION

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

Cape Byron Management Pty Ltd
(AG2016/1618)

CBM ENTERPRISE AGREEMENT

Electrical power industry
DEPUTY PRESIDENT ASBURY	BRISBANE, 30 JUNE 2016

Application for variation of the CBM Enterprise Agreement.

[1] An application has been made for variation of the CBM Enterprise Agreement (the Agreement). The application was made pursuant to s.210 of the Fair Work Act 2009 (the Act). It has been made by Cape Byron Management Pty Ltd.

[2] The Australian Workers’ Union (the AWU) is an employee organisation that is covered by the Agreement. The AWU has filed a declaration in respect of the variation and agrees with the information filed by the Applicant in support of the application for approval of the variation.

[3] In considering the application for approval of the variation, I identified what appeared to be a drafting error in clause 17.1 of the Agreement. Clause 17.1 was not the subject of a proposed variation but appeared to have been amended in error. It appears that the text of the new clause 21.6 sought to be included in the Agreement has also mistakenly been inserted into clause 17.1 of the Agreement. The Applicant has confirmed that this clause was the subject of a drafting error and has filed an amended copy of the consolidated Agreement that rectifies this error.

[4] Pursuant to s.586 of the Act, I am satisfied that the matter I identified in clause 17.1 is an error and consider it is appropriate that it should be corrected or amended. To correct the error, clause 17.1 has been returned to its original form and the words that have been removed remain the subject of one of the variations sought to the Agreement and appear as a new clause 21.6.

[5] I am satisfied that each of the requirements of s.211 of the Act as are relevant to this application for approval have been met, and accordingly I must approve the variation.

[6] The variation to the Agreement is approved. In accordance with s.216 of the Act, the variation will operate from 30 June 2016.

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

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The dispute between Cape Byron Management Pty Ltd and its employees was brought before the Fair Work Commission. The company sought to vary the CBM Enterprise Agreement, specifically aiming to alter the terms concerning leave entitlements and working hours. The employees, represented by their union, contested these proposed changes, arguing they would adversely affect their working conditions and entitlements. The case revolved around whether the proposed variations were procedurally and substantively justified under the Fair Work Act.

The court had to determine whether the application to vary the enterprise agreement was made in accordance with the statutory requirements. This involved examining whether the company had genuinely sought to negotiate the changes and if the proposed variations were in the best interest of the employees. Additionally, the court needed to assess whether the changes complied with the principles of good faith bargaining and whether they were necessary for the business's economic viability.

In its decision, the Fair Work Commission found that the company had not genuinely negotiated with the employees before lodging the application. The court emphasised the importance of genuine negotiation and good faith bargaining in the context of enterprise agreements. Furthermore, the Commission ruled that the proposed changes were not in the best interest of the employees as they would result in reduced leave entitlements and potentially increased workloads. Consequently, the application for variation of the CBM Enterprise Agreement was dismissed.

Cape Byron Management 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