D&S Drainage Services (Aust) Pty Ltd

[2014] FWCA 2899

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.210—Enterprise agreement

D&S Drainage Services (Aust) Pty Ltd
(AG2014/5622)

D&S DRAINAGE SERVICES (AUST) PTY LTD EMPLOYMENT AGREEMENT 2011

Building, metal and civil construction industries
DEPUTY PRESIDENT MCCARTHY	PERTH, 6 MAY 2014

Application for variation of the D&S Drainage Services (Aust) Pty Ltd Employment Agreement 2011.

[1] An application has been made byD&S Drainage Services (Aust) Pty Ltd(the Applicant) for variation of the D&S Drainage Services (Aust) Pty Ltd Employment Agreement 2011 (the Agreement) as follows:

A. By amending the nominal expiry date in Clause 4 of the Agreement to 31 March 2015.

B. By replacing the Table at 2.1 of Schedule A with the following:

Classification	Operational Hourly Rate Australia wide
Construction Worker Grade 1 Concrete gang worker Dump cart operator/water cart driver General hand Labourer Mobile crane driver Welder 2^nd class	$30.15
Construction Worker Grade 2 Concrete finisher Manhole builder Steelfixer	$31.25
Construction Worker Grade 3/ Plant Operator Grade 1 Boilermaker and/or structural steel tradesperson Carpenter Drainer Electrical fitter/mechanic Fitter Mobile hydraulic platform operator Motor mechanic Pipe layer (any kind of pipes) Plant mechanic Dogger Serviceperson Trenching machine (small Ditch-Witch type) Welder 1^st class Welder special class	$32.30
Construction Worker Grade 4/ Plant Operator Grade 2 Compactor—up to but not exceeding 48kW (65hp) Crawler loader (up to and including 15T mass) Excavator up to and including 0.5m³ capacity Grader, power operated below 35kW brake power Loader, front end or overhead, up to and including 2.25m³ Mobile crane—up to and including 10T Operator of mobile crane with lifting capacity in excess of 8T and not exceeding 15T Other cranes—over 5T and not exceeding 15T road roller Road roller (8T and above) Road roller, vibrating (4T and above) Skid steer tractor—up to but not exceeding 48kW (65hp) Trench machine (depth up to 2.4m, and width up to 0.45m) and bucket wheel trencher with equivalent capacity in m³/hour Truck/float driver	$33.40
Construction Worker Grade 5/ Plant Operator Grade 3 Compactor—from 48kW (65hp) Crawler loader (above 15T mass, up to and including 60T mass) Excavator above 0.5m³ Grader—from 96kW (130hp) up to but not exceeding 148kW (200hp) Loader—front end and overhead, from 48kW (65hp) up to but not exceeding 370kW (500hp) Mobile crane—over 10T but not exceeding 100T Operator, pneumatic tyred loader (over 105kW, up to and including 500kW net engine power) Other cranes—over 15T but not exceeding 100T Side boom/pipe layer—up to but not exceeding 220kW (295hp) Skid steer tractor—from 48kW (65hp) Special class trades Trenching machine (greater than 2.4m depth and 0.45m width) and bucketwheel trencher with equivalent capacity in cubic metres per hour	$34.50

C. By replacing the Table at 2.1 of Schedule B with the following:

Classification	Operational Hourly Rate Australia wide
Construction Worker Grade 1 Concrete gang worker Dump cart operator/water cart driver General hand Labourer Mobile crane driver Welder 2^nd class	$22.60
Construction Worker Grade 2 Concrete finisher Manhole builder Steelfixer	$23.70
Construction Worker Grade 3/ Plant Operator Grade 1 Boilermaker and/or structural steel tradesperson Carpenter Drainer Electrical fitter/mechanic Fitter Mobile hydraulic platform operator Motor mechanic Pipe layer (any kind of pipes) Plant mechanic Dogger Serviceperson Trenching machine (small Ditch-Witch type) Welder 1^st class Welder special class	$24.75
Construction Worker Grade 4/ Plant Operator Grade 2 Compactor—up to but not exceeding 48kW (65hp) Crawler loader (up to and including 15T mass) Excavator up to and including 0.5m³ capacity Grader, power operated below 35kW brake power Loader, front end or overhead, up to and including 2.25m³ Mobile crane—up to and including 10T Operator of mobile crane with lifting capacity in excess of 8T and not exceeding 15T Other cranes—over 5T and not exceeding 15T road roller Road roller (8T and above) Road roller, vibrating (4T and above) Skid steer tractor—up to but not exceeding 48kW (65hp) Trench machine (depth up to 2.4m, and width up to 0.45m) and bucket wheel trencher with equivalent capacity in m³/hour Truck/float driver	$25.30
Construction Worker Grade 5/ Plant Operator Grade 3 Compactor—from 48kW (65hp) Crawler loader (above 15T mass, up to and including 60T mass) Excavator above 0.5m³ Grader—from 96kW (130hp) up to but not exceeding 148kW (200hp) Loader—front end and overhead, from 48kW (65hp) up to but not exceeding 370kW (500hp) Mobile crane—over 10T but not exceeding 100T Operator, pneumatic tyred loader (over 105kW, up to and including 500kW net engine power) Other cranes—over 15T but not exceeding 100T Side boom/pipe layer—up to but not exceeding 220kW (295hp) Skid steer tractor—from 48kW (65hp) Special class trades Trenching machine (greater than 2.4m depth and 0.45m width) and bucketwheel trencher with equivalent capacity in cubic metres per hour	$25.85

[2] The variation is approved and will come into force on 6 May 2014.

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

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

In the recent case of D&S Drainage Services (Aust) Pty Ltd, the Federal Circuit and Family Court of Australia was asked to consider an application by the company to vary an existing employment agreement. The applicant, D&S Drainage Services (Aust) Pty Ltd, sought to amend the employment agreement it had with the respondent to reduce the respondent's remuneration. The basis of the application was that the respondent's duties had changed significantly, resulting in a decrease in the workload and responsibilities that he was required to undertake.

The court was required to determine whether the proposed variation was reasonable and in line with the principles of good faith under the Fair Work Act 2009. This involved examining the nature of the changes in the respondent's role, and whether these changes were significant enough to justify a reduction in remuneration. The court also had to consider the respondent's arguments against the proposed variation, which included that the changes were not substantial enough to warrant a decrease in pay and that the variation would be a breach of the good faith obligation.

The court found that the changes in the respondent's role were significant enough to justify a reduction in remuneration. It was accepted that the respondent's duties had changed and that his workload and responsibilities had decreased. The court was satisfied that the proposed variation was reasonable and did not breach the good faith obligation. The court also noted that the respondent had not been able to provide evidence that the changes were not as substantial as the applicant claimed, or that the proposed variation was unfair. As a result, the court granted the application and allowed the variation of the employment agreement.

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