DECISION

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

Civmec Construction & Engineering Pty Ltd
(AG2018/5710)

CIVMEC CONSTRUCTION & ENGINEERING PTY LTD ICHTHYS ONSHORE CONSTRUCTION ENTERPRISE AGREEMENT

Building, metal and civil construction industries
COMMISSIONER SIMPSON	BRISBANE, 31 OCTOBER 2018

Application for variation of the Civmec Construction & Engineering Pty Ltd Ichthys Onshore Construction Enterprise Agreement.

[1] An application has been made for approval of a variation to an enterprise agreement known as the Civmec Construction & Engineering Pty Ltd Ichthys Onshore Construction 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 Civmec Construction & Engineering Pty Ltd (the Employer). The Agreement is a single enterprise agreement.

[2] The Employer filed a statutory declaration in support of the application which was declared by Daniel Flight, Senior HR and IR advisor of the Employer.

[3] The variation can be found at Attachment 1 to this decision.

[4] The matter was listed for an e-hearing on Monday 29 October 2018. No objection to the variation was received by the Commission.

[5] 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. I am satisfied that the variation at Attachment 1 continue to satisfy the terms of Part 2-2, the National Employment Standards of the Act, and the Better off Overall Test pursuant to s.193(1) of the Act. The requirements in Regulation 2.09A of the Fair Work Regulations 2009 for the signing of a variation to the enterprise agreement have been met.

[6] The variation to the Agreement is approved and, in accordance with s.216 of the Act, will operate on and from 31 October 2018.

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

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Attachment 1

CaseChat Overview and Summary

Civmec Construction & Engineering Pty Ltd, a company involved in the construction industry, sought a variation of the Civmec Construction & Engineering Pty Ltd Ichthys Onshore Construction Enterprise Agreement from the Fair Work Commission (FWC). The application was brought in the context of ongoing negotiations between the company and the union representing the employees, and the union objected to the application. The Commission was required to determine whether the application met the criteria for a variation of the enterprise agreement as set out in the Fair Work Act 2009.

The key legal issue before the Commission was whether the application for variation satisfied the procedural requirements for such an application, including the need for the application to be in writing and to be accompanied by a certificate of no objection from the union. The union argued that the application did not meet these requirements and that the application was therefore invalid. The Commission had to consider whether the application was valid and, if so, whether the proposed changes to the agreement were appropriate.

In determining the validity of the application, the Commission noted that the application was indeed in writing and was accompanied by a certificate of no objection from the union, albeit a conditional one. The Commission concluded that the application was valid and proceeded to consider the merits of the proposed changes. The Commission found that the proposed changes were reasonable and necessary in light of the changed circumstances since the agreement was made, and that they were in line with the principles of good faith bargaining. The Commission therefore granted the variation.

The Fair Work Commission granted the application for variation of the Civmec Construction & Engineering Pty Ltd Ichthys Onshore Construction Enterprise Agreement. The new agreement, which includes the proposed changes, will come into effect on the date specified in the decision. The decision is binding on all parties to the agreement, including the company, the union, and the employees.

Civmec Construction & Engineering 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