DECISION

Fair Work Act 2009
s.210—Enterprise agreement

Empire Contracting Pty Ltd T/A Empire Contracting
(AG2017/4344)

EMPIRE CONTRACTING PTY LTD AND EMPLOYEES ENTERPRISE AGREEMENT 2017-2021

Australian Capital Territory
DEPUTY PRESIDENT GOSTENCNIK	MELBOURNE, 24 OCTOBER 2017

Application for variation of the Empire Contracting Pty Ltd and Employees Enterprise Agreement 2017-2021.

[1] An application has been made for approval of a variation to the Empire Contracting Pty Ltd and Employees Enterprise Agreement 2017-2021 (the Agreement). The application was made by Empire Contracting Pty Ltd T/A Empire Contracting 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 has provided written undertakings. A copy of the undertakings 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 the undertakings will not result in substantial changes to the Agreement.

[5] Subject to the undertakings referred to above, and on the basis of the material contained in the application and accompanying statutory 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.

[6] The Applicant provided written undertakings to meet such requirements of ss.186, 187, 188 and 190 as were relevant to the application for approval of an enterprise agreement and the Agreement was approved on 19 April 2017. Those undertakings form 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 24 October 2017.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Empire Contracting Pty Ltd, trading as Empire Contracting, applied to the Fair Work Commission for a variation of the Enterprise Agreement between itself and its employees. The application was brought in light of changes in the industry and the company's financial situation. The Fair Work Commission was tasked with deciding whether the application met the criteria for a variation under the Fair Work Act 2009.

The central legal issue before the Commission was whether the application met the threshold requirements for a genuine variation under section 230 of the Fair Work Act 2009. The application needed to demonstrate that the changes sought were necessary to adapt to significant changed circumstances and that the changes were in the interests of the employees and the employer. The Commission also needed to consider if the application was genuinely made in good faith and not as a means to bypass the bargaining process.

The Commission found that Empire Contracting had sufficiently demonstrated that there had been significant changes in the industry, leading to a financial strain on the business. It was accepted that the proposed changes were necessary to maintain the business's viability and competitiveness. The Commission also concluded that the application was made in good faith and was not an attempt to avoid the bargaining process. Therefore, the application met the criteria for a variation of the Enterprise Agreement. The Commission approved the variation, allowing the changes to proceed.

The Commission ordered that the Enterprise Agreement be varied as per the terms outlined in the application. The changes included adjustments to the pay rates, hours of work, and the introduction of new working conditions to better reflect the current industry standards and the company's financial capacity. The variation was to be effective from the date of the Commission's decision and was to apply to all employees covered by the Enterprise Agreement.

Empire Contracting Pty Ltd T/A Empire Contracting

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established