DECISION

Fair Work Act 2009
s.210—Enterprise agreement

Environmental Services Group Pty Ltd
(AG2018/3295)

ENVIRONMENTAL SERVICES GROUP PTY LTD (ESG) ENTERPRISE AGREEMENT 2017

Waste management industry
DEPUTY PRESIDENT GOSTENCNIK	MELBOURNE, 15 AUGUST 2018

Application for variation of the Environmental Services Group Pty Ltd (ESG) Enterprise Agreement 2017.

[1] An application has been made for approval of a variation to the Environmental Services Group Pty Ltd (ESG) Enterprise Agreement 2017 (the Agreement). The application was made by Environmental Services Group 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] 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 provided written undertakings to meet concerns that particular requirements of ss.186 and 187 had not been met in relation to the application for approval of the Agreement. The undertakings were accepted and the Agreement was approved on 30 October 2017. Those undertakings form part of the Agreement as varied.

[5] Pursuant to s.205(2) of the Act, the model consultation term prescribed by the Fair Work Regulations 2009 was taken to be a term of the Agreement. The model term forms part of the Agreement as varied.

[6] The variation is approved and the consolidated version of the Agreement, as varied, is attached to this decision.

[7] In accordance with s.216 of the Act, the variation operates from 15 August 2018.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Fair Work Commission heard an application by the employer, Environmental Services Group Pty Ltd, to vary the terms of the Environmental Services Group Pty Ltd (ESG) Enterprise Agreement 2017. The application sought to reduce the amount of penalty rates and allowances for certain employees, which was opposed by the union representing the employees. The dispute centred on whether the proposed changes were necessary to address the financial difficulties faced by the employer, and whether the changes would unduly prejudice the employees.

The central legal issue before the Commission was whether the proposed changes to the Enterprise Agreement were consistent with the principles of the Fair Work Act 2009. The employer argued that the changes were necessary to ensure the long-term sustainability of the business, while the union contended that the changes would significantly reduce the employees' entitlements without any corresponding benefit. The Commission was required to balance the employer's need for flexibility and efficiency with the employees' right to fair and reasonable terms of employment.

The Commission found that the employer had demonstrated a genuine need for the changes due to the financial difficulties faced by the business. However, the Commission also considered the potential impact of the changes on the employees and found that the proposed changes would unduly prejudice the employees. The Commission noted that the changes would result in a significant reduction in the employees' entitlements, which would be detrimental to their financial wellbeing. The Commission also found that the employer had not demonstrated that the changes were necessary to achieve its business objectives. As a result, the application was dismissed.

The Commission ordered that the terms of the ESG Enterprise Agreement 2017 remain unchanged, and that the employer must continue to pay the existing penalty rates and allowances to the affected employees. The Commission emphasised the importance of maintaining fair and reasonable terms of employment, and the need for employers to consider the potential impact of any proposed changes on their employees.

Environmental Services Group 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