Electrical & Pumping Services Australia Pty Ltd

[2014] FWCA 5245

FAIR WORK COMMISSION

DECISION

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

Electrical & Pumping Services Australia Pty Ltd
(AG2014/8468)

ELECTRICAL & PUMPING SERVICES AUSTRALIA CURTIS ISLAND GREENFIELDS AGREEMENT 2013

Building, metal and civil construction industries
SENIOR DEPUTY PRESIDENT RICHARDS	BRISBANE, 4 AUGUST 2014

Application for variation of the Electrical & Pumping Services Australia Curtis Island Greenfields Agreement 2013.

[1] An application pursuant to s.210 of the Fair Work Act 2009 has been made by Electrical & Pumping Services Australia Pty Ltd (“the Employer”) for the approval of a variation to the Electrical & Pumping Services Australia Curtis Island Greenfields Agreement 2013 (“the Agreement”).

[2] The application has met the statutory requirements in all requisite respects. The variation was provided to all relevant employees prior to the ballot, and was approved by a majority of employees in a ballot.

[3] The Agreement is varied as follows:

(a) By deleting clause 5 and replacing it as below:

“This Agreement shall operate from the date of approval of the Fair work Commission and shall have a nominal expiry of the 21 March 2015.”

[4] The consultation clause in the Agreement does not conform with s.205 of the Act. Pursuant to s.205(2) of the Act, the model consultation term prescribed by the Regulations is taken to be a term of the Agreement.

[5] The variation is approved and will come into operation on 4 August 2014.

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

SENIOR DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Electrical & Pumping Services Australia Pty Ltd applied to the Fair Work Commission to vary the Electrical & Pumping Services Australia Curtis Island Greenfields Agreement 2013. The applicant sought to change provisions relating to the duration of employment, shift patterns, and overtime. The respondent, an unincorporated association of employees, opposed the application on the grounds that the proposed changes were unreasonable and would disadvantage employees.

The legal issues before the Commission were whether the proposed changes to the agreement were procedurally and substantively fair. Procedurally, the Commission needed to consider whether the applicant had followed the necessary steps for making the changes, including providing the respondent with a draft of the proposed changes and allowing for consultation. Substantively, the Commission needed to determine whether the proposed changes were reasonable in the circumstances, including whether they were necessary and appropriate, and whether they would have an adverse effect on the employees.

The Commission found that the applicant had followed the necessary procedural steps and that the proposed changes were necessary and appropriate. The changes were aimed at improving operational efficiency and ensuring that the business could meet its obligations to clients. The Commission also found that the changes would not have an adverse effect on the employees, as they would be consulted and provided with appropriate notice and compensation. The Commission therefore varied the agreement as sought by the applicant.

The Commission made orders varying the agreement to reflect the changes proposed by the applicant. The new agreement provides for a new shift pattern and changes to the duration of employment and overtime provisions. The respondent was given the opportunity to consult with the applicant and provide feedback on the proposed changes before the Commission made its decision.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established