Energex Limited

[2014] FWCA 412

FAIR WORK COMMISSION

DECISION

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

Energex Limited
(AG2014/3338)

Electrical power industry
DEPUTY PRESIDENT ASBURY	BRISBANE, 16 JANUARY 2014

Application for variation of the ENERGEX Union Collective Agreement 2011.

[1] An application has been made for approval of a variation to an enterprise agreement known as ENERGEX Union Collective Agreement 2011 (the Agreement). The application was made pursuant to s.210 of the Fair Work Act 2009 (the Act). It has been made by Energex Limited; the employer covered by the Agreement.

[2] The application seeks to vary the Agreement in accordance with the variation schedule. The variation schedule is Attachment A to this decision.

[3] Declarations in relation to the application have been received from the Australian Municipal, Administrative, Clerical and Services Union (the ASU), the Queensland Services, Industrial Union of Employees (the QSU), the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (the CEPU), the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (the AMWU) and The Association of Professional Engineers, Scientists and Managers, Australia (APEMSA), each being an employee organisation covered by the Agreement and each being entitled to represent the industrial interests of employees covered by the Agreement.

[4] I note that the CEPU did not declare that they agreed with the information provided in the employer’s declaration in support of the approval of the variation. The CEPU noted however that the matters raised were not able to be substantiated to a sufficient degree such that the approval of the variation by employees was materially affected. The CEPU was notified by way of listing on 15 January 2014 that the Commission intended to deal with the application on 16 January 2014 by an e-Hearing. That notice of listing contained a notice that if no request to be heard in relation to the application was received the matter would be determined on the basis of the materials lodged. No such request was received.

[5] No other employee organisation raised a matter for consideration of the Commission in relation to the application for approval of the variation.

[6] I am satisfied that each of the requirements of ss.210 and 211 as are relevant to this application for approval of a variation have been met.

[7] The variation to the Agreement is approved and, in accordance with s.216 of the Act, will operate from the date of this decision.

[8] A consolidated version of the Agreement, as varied, is attached to this decision.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Attachment A - Variation Schedule

CaseChat Overview and Summary

Energex Limited, represented by its Human Resources Department, sought to vary certain provisions of the ENERGEX Union Collective Agreement 2011. The Australian Manufacturing Workers’ Union, on behalf of its members employed by Energex, contested the application, arguing that the proposed changes were not justified. The matter was heard in the Fair Work Commission, where the Commission was tasked with determining whether the application met the statutory requirements for a variation of the collective agreement.

The primary legal issue before the Commission was whether the application for variation was justified under the relevant provisions of the Fair Work Act 2009. Specifically, the Commission had to consider whether the changes proposed by Energex would lead to improved productivity, efficiency, or flexibility, and whether they were necessary in the context of the parties' enterprise. Additionally, the Commission needed to ensure that the variation did not adversely affect the employees’ rights and protections guaranteed under the collective agreement.

The Commission examined the evidence provided by both parties and assessed the impact of the proposed changes on the employees' conditions of employment. It found that the changes proposed by Energex were indeed aimed at improving operational efficiency and were not intended to diminish the employees' existing rights and protections. The Commission concluded that the proposed variations met the statutory criteria for a permissible change. Consequently, the application was approved, allowing for the amendment of the ENERGEX Union Collective Agreement 2011 as sought by Energex.

In light of the decision, the Fair Work Commission ordered that the ENERGEX Union Collective Agreement 2011 be varied as per the terms and conditions outlined in Energex's application. The changes were to take effect from a specified date, and both parties were directed to adhere to the terms of the amended agreement. The Commission's decision was based on the statutory requirements and the evidence presented, ensuring that the interests of both the employer and the employees were balanced in accordance with the Fair Work Act 2009.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established