CEI Services Pty Ltd

[2024] FWCA 3883

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

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

CEI Services Pty Ltd

(AG2024/3279)

Manufacturing and associated industries
COMMISSIONER TRAN	MELBOURNE, 7 NOVEMBER 2024

Application for variation of the CEI Services Pty Ltd Enterprise Agreement 2021–2025

CEI Services Pty Ltd has applied for approval of a variation to the CEI Services Pty Ltd Enterprise Agreement under s 210 of the Fair Work Act 2009.

The application seeks to vary various clauses of the Agreement. The Variation is attached as Annexure A to this decision.

Genuine Agreement

The employer did not provide employees with seven clear days to access the Variation. The employer also asked employees to vote on the Variation on the seventh day after being notified of the time, place and method of the vote. Based on the employer’s response to the concerns that I raised, I am satisfied that employees had a reasonable opportunity to consider the Variation due to the nature of the variations being to replicate award provision and that they had a reasonable opportunity to vote, despite both periods ending on the 7^th day.

I am satisfied that the variation was genuinely agreed, taking into account the Statement of Principles.

National Employment Standards

I observe that the following clauses may be inconsistent with the NES:

· Clause 4.3 provides for conversion from casual to permanent employment but does not refer to subdivision B of Division 4A – Employee choice about casual employment;
· Clause 7.2 is silent in relation to the entitlement to compassionate leave when the employee, their spouse or de facto partner has a miscarriage or gives birth to a stillborn child, which may be inconsistent with s 104(1)(c) of the Act; and

· Clause 7.9 does not provide for 10 days paid leave, inconsistent with s 106A(1) of the Act;

Undertakings

The Applicant has provided written undertakings. A copy of the undertakings is attached as Annexure B to this decision. I am satisfied that the undertakings will not result in substantial changes to the variation. The undertakings are taken to be a term of the Agreement.

Approval of Variation

Subject to the undertakings referred to above, I am satisfied that each of the requirements of ss 210 and 211 as are relevant to this application for approval of a variation have been met.

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 7 November 2024.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

ANNEXURE A

ANNEXURE B

CEI Services Pty Ltd applied to the Fair Work Commission for the approval of a variation to the CEI Services Pty Ltd Enterprise Agreement 2021–2025. The application seeks to amend various clauses of the Agreement, with the proposed changes detailed in Annexure A to the decision. The primary issue before the Commission was whether the variation met the statutory requirements under the Fair Work Act 2009, specifically sections 210 and 211.

The Commission examined whether the variation was genuinely agreed upon by the employer and employees, considering the employer's failure to provide employees with seven clear days to access the proposed changes and the timing of the vote on the variation. Despite these shortcomings, the Commission was satisfied that employees had a reasonable opportunity to consider and vote on the variation, given the minor nature of the changes. Additionally, the Commission assessed whether the variation complied with the National Employment Standards (NES), identifying potential inconsistencies in clauses 4.3, 7.2, and 7.9. However, the employer's undertakings to address these issues were deemed sufficient to ensure compliance with the NES.

After considering the employer's undertakings, which were attached as Annexure B to the decision, the Commission concluded that all relevant statutory requirements for the approval of the variation had been met. The variation was approved, with the amended agreement to take effect from 7 November 2024. The consolidated version of the agreement, reflecting the approved variation, is also attached to the decision.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established