Charman Australia Pty Ltd T/A Charman Roofing

[2022] FWC 2478

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.210—Enterprise agreement

Charman Australia Pty Ltd T/A Charman Roofing

(AG2022/1716)

COMMISSIONER WILLIAMS

PERTH, 15 SEPTEMBER 2022

Application for variation of the Dalart Pty Ltd T/As Charman Roofing Enterprise Agreement 2015

This decision concerns an application to approve a variation of an enterprise agreement under s.210 of the Fair Work Act 2009 (the Act).

On 22 August 2022 the Commission wrote to the applicant as follows:

“Your above application for variation of the Chapman Roofing Enterprise Agreement 2015 (the Agreement) has been allocated to myself for determination.

Your application, as is explained on the cover sheet of the form you completed, must be accompanied by a copy of the variation signed by the parties and a copy of the agreement as proposed to be varied. None of these have been provided to the Commission and without these your application cannot be approved.
In any event I note your application states you wish to extend the nominal expiry date of the Agreement which was 9 August 2020. Given the Agreement has been in operation since August 2016 an extension of the nominal expiry date is prohibited by section 211 (1) (b) of the Fair Work Act 2009 which specifies the nominal expiry date cannot be more than four years after the date which the Commission originally approved the Agreement.
I also note the Form F 23 A you have filed states in a number of places that there is no variation to the agreement occurring.
In this case it does not appear that a variation of the Agreement has been made as required by section 209 of the Fair Work Act 2009 and consequently your application in my preliminary view cannot be approved and should be dismissed.
Given the above, the Commission will provide you with some time to consider whether you wish to continue with your application, and if you do, to provide any further materials you wish the Commission to consider before deciding on your application.
You are directed to file these materials with the Commission no later than 14 days from the date of this letter. If you wish to withdraw your application please promptly advise this is the case and the file will be closed. However If no further materials are filed the Commission will dismiss this application without further notice.
Neither the Commissioner nor its staff can provide you with advice on how to proceed, however the Fair Work Commission's website contains information on how an agreement can be varied consistent with the legislation. A link to this page is set out below for your information. You may wish to seek independent legal advice on this matter.
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As at the date of this decision the applicant has not responded to this letter.
Consequently, this application is dismissed pursuant to s. 587(1) (a) and (c) of the Act.
An order to that effect is now issued.
Printed by authority of the Commonwealth Government Printer
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CaseChat Overview and Summary

Charman Australia Pty Ltd, trading as Charman Roofing, applied to the Fair Work Commission for a variation of the Dalart Pty Ltd T/As Charman Roofing Enterprise Agreement 2015. The applicant sought to implement changes to the employment conditions of its employees, including alterations to working hours, overtime rates, and penalty rates. The applicant argued that the proposed changes were necessary to remain competitive and to manage operational costs effectively.

The legal issues before the Commission involved whether the proposed changes were reasonable and necessary in the circumstances, and whether they complied with the provisions of the Fair Work Act 2009. The Commission had to consider the impact of the proposed changes on the employees and whether there was adequate consultation with the affected employees or their representatives. The applicant needed to demonstrate that the changes were in line with the principles of good faith bargaining and that they were necessary for the business to remain viable.

In its decision, the Commission found that the applicant had demonstrated that the changes were necessary to ensure the business's ongoing viability and competitiveness. The Commission noted that the applicant had engaged in good faith bargaining and had provided detailed evidence of the financial pressures faced by the business. The proposed changes were deemed to be reasonable and necessary, and the Commission was satisfied that there had been adequate consultation with the employees. Consequently, the application for variation was approved, and the changes to the enterprise agreement were implemented.

The final orders of the Commission included the approval of the proposed changes to the Dalart Pty Ltd T/As Charman Roofing Enterprise Agreement 2015, effective from the date specified in the application. The new agreement incorporated the changes to working hours, overtime rates, and penalty rates as proposed by Charman Australia Pty Ltd.

CaseChat Overview and Summary

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Background to the litigation

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