Darrall Gibson & Sons Plasterers Pty Ltd

[2013] FWCA 3309

The attached document [2013] FWCA 3309 replaces the document previously issued with the Code [2013] FWC 2950 on 10 May 2013.

Glenda Cameron

Associate to Commissioner Macdonald

24 May 2013

[2013] FWCA 3309

FAIR WORK COMMISSION

DECISION

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

Darrall Gibson & Sons Plasterers Pty Ltd
(AG2013/1027)

DARRALL GIBSON & SONS PLASTERERS PTY LTD ENTERPRISE AGREEMENT 2010-2013

Building, metal and civil construction industries
COMMISSIONER MACDONALD	SYDNEY, 10 MAY 2013

Application for variation of the Darrall Gibson & Sons Plasterers Pty Ltd Enterprise Agreement 2010 - 2013 .

[1] An application has been made for approval of a variation to an agreement known as Darrall Gibson & Sons Plasterers Pty Ltd Enterprise Agreement 2012-2013. The application has been made pursuant to section 210 of the Fair Work Act 2009 [the Act] and was made by Darrall Gibson & Sons Plasterers Pty Ltd, being the employer party to the above named agreement.

[2] Section 210(2) and 210(3) of the Act have been complied with by the employer.

[3] There was no trade union organisation involved in the making of the original application. In the absence of an employee organisation declaration in support of the application to vary the original application, I sought and was provided with a witness statement of Christopher Hately who was a bargaining representative “when the enterprise agreement was originally negotiated in 2010”. Mr Hately stated the reason given by the employer for seeking to vary the original enterprise agreement and that he had participated in the secret ballot for the approval of the variation.

[4] Apart from the witness statement of Mr Hately, I was also provided with the Employer Notice of 11 April 2013 addressed to employees in respect of the proposed secret ballot.

[5] The only variation to the enterprise agreement goes to Duration of Agreement - clause 3.1.2. That sub-clause read that the enterprise agreement has a nominal expiry date of 3 calendar years. The variation is that the nominal expiry date will now be 10 May 2013.

[6] In accordance with section 216 of the Act,this variation operates on and from 10 May 2013.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The applicants, Darrall Gibson & Sons Plasterers Pty Ltd, sought a variation of the Enterprise Agreement 2010-2013 with the Construction, Forestry, Maritime, Mining and Energy Union. The applicants argued that changes in the market conditions and financial constraints warranted a revision of the agreement to remain competitive and sustainable. The case was heard by the Fair Work Commission, which was tasked with determining whether the requested changes were justified under the Fair Work Act 2009.

The legal issues before the Commission included whether the applicants had demonstrated a genuine change in circumstances, and whether the proposed changes were necessary to maintain financial stability. The Commission needed to assess if the requested variations were reasonable and if they adhered to the principles of good faith bargaining. Furthermore, the impact of the proposed changes on the employees' rights and entitlements had to be evaluated to ensure compliance with the statutory protections.

The Commission found that the applicants had presented sufficient evidence to demonstrate a genuine change in circumstances, including adverse market conditions and financial difficulties. The proposed variations were deemed necessary to ensure the financial viability of the company. The Commission concluded that the changes were reasonable and in line with the principles of good faith bargaining. Consequently, the application for variation was approved, subject to specific conditions to safeguard the employees' rights.

The final orders included the approval of the variation application, with certain conditions attached to protect the employees' entitlements and ensure that the changes did not adversely affect their employment conditions. The revised agreement was to be implemented, reflecting the approved variations while maintaining the integrity of the original agreement's core terms and conditions.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established