DECISION

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

Contract Electrical (Qld) Pty Ltd
(AG2014/10958)

CONTRACT ELECTRICAL QLD PTY LTD T/A CEQ AUSTRALIA & CEPU ELECTRICAL DIVISION QUEENSLAND ENTERPRISE AGREEMENT 2012-2015

Electrical contracting industry
SENIOR DEPUTY PRESIDENT RICHARDS	BRISBANE, 9 JANUARY 2015

Application for variation of the Contract Electrical Qld Pty Ltd T/A CEQ Australia & CEPU Electrical Division Queensland Enterprise Agreement 2012 - 2015.

[1] An application pursuant to s.210 of the Fair Work Act 2009 has been made by Contract Electrical (Qld) Pty Ltd for the approval of a variation to the Contract Electrical Qld Pty Ltd T/A CEQ Australia & CEPU Electrical Division Queensland Enterprise Agreement 2012 - 2015 (“the Agreement”).

[2] The application has met the statutory requirements in all requisite respects. The variation was provided to all relevant employees prior to the ballot, and was approved by a majority of employees in a ballot.

[3] The Agreement is varied as follows:

By inserting the below paragraph into clause 1.7 - Application of Agreement:

“This Agreement does not apply to the Company with respect to employees who undertake Electrical Service and Construction Work valued less than 6 million dollars in Electrical Value.”

[4] The consultation clause in the Agreement does not conform with s.205 of the Act. Pursuant to s.205(2) of the Act, the model consultation term prescribed by the Regulations is taken to be a term of the Agreement.

[5] The variation is approved and will come into operation on 9 January 2015.

[6] A consolidated copy of the Agreement is attached to this decision.

SENIOR DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the recent case of Contract Electrical (Qld) Pty Ltd, the Fair Work Commission was asked to consider an application for the variation of the Contract Electrical Qld Pty Ltd T/A CEQ Australia & CEPU Electrical Division Queensland Enterprise Agreement 2012-2015. The application was made by the employer, Contract Electrical (Qld) Pty Ltd, seeking amendments to the existing enterprise agreement to incorporate changes to employee conditions, including pay rates and working conditions. The changes proposed by the employer were opposed by the CEPU, the union representing the employees.

The central legal issues before the Commission involved the interpretation and application of the Fair Work Act 2009, specifically sections concerning the process for varying an enterprise agreement. The key question was whether the proposed changes met the criteria for a protected action variation, which allows for modifications to be made without the need for union consent, provided certain conditions are satisfied. The employer argued that the changes were necessary to maintain business viability and competitiveness, while the union contended that the proposed changes would detrimentally affect the employees' conditions.

The Commission, after careful consideration of the evidence and arguments presented, determined that the proposed variations did not meet the criteria for a protected action variation. The employer failed to demonstrate that the changes were necessary to address a significant economic, technological, or structural change in the business. The Commission found that the employer had not sufficiently proven that the proposed changes were essential for the business to remain competitive or viable. Consequently, the application for variation was dismissed, and the existing enterprise agreement remained in place.

The Fair Work Commission's decision underscores the importance of employers providing robust evidence to support the necessity of proposed changes to employee conditions. The case highlights the stringent requirements that must be met for variations to be considered as protected actions under the Fair Work Act. The outcome reinforces the principle that changes to enterprise agreements should be carefully evaluated to ensure they are justified and do not adversely affect employees' conditions.

Contract Electrical (Qld) 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