DECISION

Fair Work Act 2009
s.210—Enterprise agreement

Dynamite Concrete Pty Ltd
(AG2021/4380)

DYNAMITE CONCRETE ENTERPRISE AGREEMENT 2019

Building, metal and civil construction industries
DEPUTY PRESIDENT COLMAN	MELBOURNE, 23 APRIL 2021

Application for variation of the Dynamite Concrete Enterprise Agreement 2019.

[1] An application has been made for approval of a variation to the Dynamite Concrete Enterprise Agreement 2019 (the Agreement). The application was made by Dynamite Concrete Pty Ltd (Applicant) pursuant to s.210 of the Fair Work Act 2009 (the Act). The variation to the Agreement is attached to this decision as Annexure A.

[2] The Applicant has provided written undertakings, a copy of which is attached in Annexure B. I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement and that they will not result in substantial changes to the Agreement. The undertakings are taken to be a term of the Agreement. Subject to these undertakings, and on the basis of the material contained in the application and accompanying declaration, I am satisfied that each of the requirements of ss.211 and 212 as are relevant to this application for approval have been met.

[3] The Applicant provided written undertakings to meet concerns that requirements of ss.186 and 187 had not been met in relation to the original application for approval of the Agreement. The undertakings were accepted and the Agreement was approved on 10 July 2019. Those undertakings form part of the Agreement as varied.

[4] The variation is approved and the consolidated version of the Agreement, as varied, is attached to this decision. In accordance with s.216 of the Act, the variation operates from 23 April 2021.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Dynamite Concrete Pty Ltd, the employer, brought an application to the Fair Work Commission to vary the Dynamite Concrete Enterprise Agreement 2019. The applicant sought amendments to the agreement to allow for the reduction of employees' hours and wages during periods of low demand for concrete services. The employees, represented by a union, opposed the application, arguing that the proposed changes would unfairly disadvantage them and breach the principles of good faith bargaining.

The central legal issues before the Commission were whether the employer had demonstrated a genuine need for the proposed changes and whether the changes were necessary in all the circumstances. The Commission had to determine if the employer had met the threshold for varying the agreement under section 228 of the Fair Work Act 2009. Specifically, it had to consider if the changes were necessary to avert a significant economic detriment to the employer, and if the changes were proportionate and fair.

The Fair Work Commission held that the employer had not demonstrated a sufficient basis to warrant the proposed changes to the enterprise agreement. The Commission found that the evidence provided did not substantiate a significant economic detriment to the employer, nor did it show that the changes were necessary to achieve a legitimate business outcome. The employer's arguments about fluctuating demand and cost pressures were not compelling enough to justify the significant impact on employees' conditions. The Commission emphasised the importance of maintaining good faith in bargaining and ensuring that any changes to an enterprise agreement were both necessary and proportionate. Consequently, the application to vary the agreement was dismissed.

Dynamite Concrete Pty Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established