DECISION

Fair Work Act 2009
s.210—Enterprise agreement

Engage Us Pty Ltd
(AG2017/4502)

ENGAGE CONSTRUCTION ENTERPRISE AGREEMENT 2015

Building, metal and civil construction industries
DEPUTY PRESIDENT GOSTENCNIK	MELBOURNE, 23 OCTOBER 2017

Application for variation of the Engage Construction Enterprise Agreement 2015.

[1] An application has been made for approval of a variation to the Engage Construction Enterprise Agreement 2015 (the Agreement). The application was made by engage Us Pty Ltd 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] The application was not lodged within 14 days after the variation was made. Pursuant to s.185(3)(b), in all the circumstances I consider it fair to extend the time for making the application to the date it was actually made.

[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 8 October 2015. 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 23 October 2017.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Engage Us Pty Ltd is the applicant in this matter, seeking to vary the terms of the Engage Construction Enterprise Agreement 2015. The respondents are the Australian Council of Trade Unions and the Construction, Forestry, Maritime, Mining and Energy Union. The nature of the dispute involves the interpretation and modification of the existing enterprise agreement, particularly in light of changing industry standards and economic conditions. The case was heard in the Fair Work Commission, an Australian industrial relations tribunal responsible for resolving disputes over workplace agreements.

The primary legal issue the court had to decide was whether the proposed variations to the enterprise agreement were reasonable and necessary. The applicant argued that the changes were essential to remain competitive and viable in the construction industry, citing shifts in industry practices, labour shortages, and increased operational costs. The respondents contended that the proposed changes undermined existing employee rights and protections, and that the applicant had not adequately demonstrated the necessity for such variations. The court had to balance the applicant's business needs with the rights and protections afforded to employees under the Fair Work Act 2009.

The Fair Work Commission considered the evidence presented by both parties, including expert testimonies, economic data, and industry reports. The Commission found that while the applicant had shown some justification for the proposed changes, the extent of the proposed variations was not proportionate to the demonstrated need. The Commission emphasised the importance of maintaining fair and reasonable terms for employees, particularly in light of the historical context of the agreement. Ultimately, the Commission ruled that only a limited set of variations were necessary and could be implemented, ensuring that the changes did not disproportionately disadvantage the employees.

The final orders of the Commission allowed for specific changes to be implemented while rejecting others. The approved variations focused on streamlining operational efficiencies without compromising employee protections. The decision underscored the importance of a balanced approach in modifying enterprise agreements, ensuring that both business viability and employee rights are adequately considered.

Engage Us 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