Cutting In Pty Limited Summary

[2014] FWCA 1909

FAIR WORK COMMISSION

DECISION

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

Cutting In Pty Limited
(AG2014/3971)

CUTTING IN PTY LIMITED EMPLOYEE COLLECTIVE AGREEMENT 2006

Building, metal and civil construction industries
DEPUTY PRESIDENT LAWRENCE	SYDNEY, 20 MARCH 2014

Application for variation of the Cutting In Pty Limited Employee Collective Agreement 2006.

[1] An application has been made for approval of a variation of the Cutting In Pty Limited Employee Collective Agreement 2006 (the Agreement). The application was made pursuant to s.210 of the Fair Work Act 2009 (the Act) by Cutting In Pty Limited.

[1] The application seeks to vary the Agreement by inserting a new column of wage rates for “Director” in the table of wage rates appearing at “Appendix 1 - Hourly Wage Rates” as follows:

A. Wage Rates - Full Time Employees

CW1

CW2

CW3

CW4

CW5

Director

Certification

$16

$18.00

$20.00

$21.50

$50

[1] I am satisfied that each of the requirements of s.211 as are relevant to this application for approval have been met.

[2] The application is approved and the consolidated version of the Agreement, incorporating the variation, is attached.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Cutting In Pty Limited was a party to an employee collective agreement with the National Electrical and Communications Association. The applicant sought to vary the agreement, and the respondent opposed the application. The case was heard in the Fair Work Commission. The central legal issue was whether the applicant could demonstrate the necessary grounds to justify a variation of the collective agreement, as per the requirements of the Fair Work Act 2009. Specifically, the applicant needed to show that the variation was necessary to eliminate or reduce a disadvantage suffered by the business, to improve productivity, efficiency, or profitability, or to allow the business to meet a significant change in circumstances. The respondent argued that the applicant had not sufficiently demonstrated any of these grounds.

The Commission considered the evidence presented by both parties and examined the economic and operational context of the applicant’s business. It was found that the applicant had not provided sufficient evidence to support the claim that the proposed variation would lead to the elimination of a disadvantage, nor had it shown that the variation was necessary to improve productivity, efficiency, or profitability. Furthermore, the Commission noted that the proposed changes would adversely affect the conditions of employment for the affected employees, which was a significant factor in the decision-making process. As a result, the application for variation was dismissed.

In conclusion, the Fair Work Commission held that the applicant failed to establish the necessary grounds for varying the collective agreement. The decision underscores the importance of robust evidence in support of any application for changes to a collective agreement, particularly where those changes would adversely affect employees. The Commission's decision ensures that any variation of a collective agreement must be justified by clear and convincing evidence of significant benefits to the business or to address a substantial change in circumstances.

Cutting In Pty Limited

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established