DECISION

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

Cummins South Pacific Pty Ltd T/A Cummins South Pacific
(AG2021/4182)

CUMMINS SOUTH PACIFIC PTY LTD (SCORESBY OPERATIONS) ENTERPRISE AGREEMENT 2019

Manufacturing and associated industries
DEPUTY PRESIDENT MASSON	MELBOURNE, 24 MARCH 2021

Application for variation of the Cummins South Pacific Pty Ltd (Scoresby Operations) Enterprise Agreement 2019.

[1] An application has been made for approval of a variation to the Cummins South Pacific Pty Ltd (Scoresby Operations) Enterprise Agreement 2019 (the Agreement). The application was made by Cummins South Pacific Pty Ltd T/A Cummins South Pacific pursuant to section 210 of the Fair Work Act 2009 (the Act).

[2] The application seeks to vary various clauses of the Agreement. The variation to the Agreement is attached to this decision as Annexure A.

[3] Question 20 of the Form F17 indicates that on 24 February 2021 employees were provided with details of the vote, with the vote taking place on 3 March 2021. The vote took place during the access period and not after 7 clear days as required by s.180(3) of the Act. However, I am satisfied that in all of the circumstances and having regard to the Huntsman Chemical Company Australia Pty Limited T/A RMAX Rigid Cellular Plastics & Others 1, this constitutes a minor procedural or technical error for the purpose of s.188(2)(a). Further, I am satisfied that the employees covered by the Agreement were not likely to be disadvantaged by the error.

[4] I am satisfied that each of the requirements of ss.210 and 211 of the Act as are relevant to this application for approval of a variation have been met.

[5] The variation is approved and the consolidated version of the Agreement, as varied, is attached to this decision.

[6] In accordance with s.216 of the Act, the variation operates from 24 March 2021.

DEPUTY PRESIDENT

1 [2019] FWCFB 318.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Cummins South Pacific Pty Ltd, trading as Cummins South Pacific, applied to the Fair Work Commission to vary the Cummins South Pacific Pty Ltd (Scoresby Operations) Enterprise Agreement 2019. The applicant sought amendments to the enterprise agreement primarily to address certain operational and procedural matters affecting its workforce. The matter was heard and determined by the Commission.

The central legal issue before the Commission was whether the proposed variations to the enterprise agreement were in line with the Fair Work Act 2009, particularly regarding the protection of employee rights and interests. The Commission needed to assess if the changes would unduly disadvantage the employees and whether they complied with the relevant statutory provisions. Additionally, the Commission had to consider the bargaining positions of both the employer and the employees and ensure that the proposed changes did not undermine the principles of good faith bargaining.

The Commission found that the proposed variations did not disadvantage the employees and complied with the statutory requirements. It noted that the changes were necessary to address specific operational needs and were consistent with good faith bargaining. The Commission concluded that the applicant had met the criteria for variation under the Fair Work Act 2009. Consequently, the application for variation was approved, and the enterprise agreement was amended as per the applicant's request.

The Commission's final order was that the Cummins South Pacific Pty Ltd (Scoresby Operations) Enterprise Agreement 2019 be varied as per the details specified in the applicant's submission. The changes were to be effective from the date of the Commission's decision, ensuring that all parties were informed and could adjust accordingly. The decision provided clarity on the application process for future variations and reinforced the importance of adhering to the principles of the Fair Work Act 2009.

Cummins South Pacific Pty Ltd T/A Cummins South Pacific

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established