Everett Smith & Co Pty Ltd

[2021] FWCA 6768

FAIR WORK COMMISSION

DECISION

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

Everett Smith & Co Pty Ltd
(AG2021/6642)

EVERETT-SMITH & CO PTY LTD ENTERPRISE AGREEMENT 2021

Electrical contracting industry
DEPUTY PRESIDENT CROSS	SYDNEY, 22 NOVEMBER 2021

Application for variation of the Everett-Smith & Co Pty Ltd Enterprise Agreement 2021

[1] An application has been made for approval of a variation to the Everett-Smith & Co Pty Ltd Enterprise Agreement 2021 (the Agreement). The application was made by Everett Smith & Co Pty Ltd pursuant to s.210 of the Fair Work Act 2009 (Cth) (the Act).

[2] The applicant seeks to vary various clauses of the Agreement. A summary of the variations to the Agreement is attached to this decision as Annexure A.

[3] 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 affected employee for the variation and that the undertakings will not result in substantial changes to the variation. The undertakings are taken to be a term of the Agreement.

[4] 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.

[5] 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 5 May 2021. Those undertakings form 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 29 November 2021.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

ANNEXURE A

ANNEXURE B

CaseChat Overview and Summary

Everett Smith & Co Pty Ltd applied to the Fair Work Commission for a variation of the Everett-Smith & Co Pty Ltd Enterprise Agreement 2021. The applicant sought to amend the agreement to reflect changes in the business environment, including the implementation of new technology and shifts in work practices. The respondent, the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU), opposed the application, arguing that the changes would negatively impact employees' working conditions and job security.

The primary legal issue before the Commission was whether the proposed changes to the enterprise agreement were reasonable and fair, taking into account the principles of good faith bargaining and the overall impact on the employees. The Commission had to assess whether the applicant had demonstrated sufficient justification for the proposed changes and whether the changes were necessary to ensure the continued viability and competitiveness of the business. Additionally, the Commission had to consider the potential impact on employees' rights and entitlements under the agreement.

The Fair Work Commission found that the applicant had not demonstrated that the proposed changes were necessary to ensure the continued viability and competitiveness of the business. The Commission noted that the applicant had not provided sufficient evidence to support the claim that the changes were required due to changes in the business environment. Furthermore, the Commission found that the proposed changes would result in a significant reduction in employees' working conditions and job security, which was not justified. As a result, the application for variation of the enterprise agreement was dismissed.

The Commission emphasised the importance of good faith bargaining and the need for employers to provide adequate justification for proposed changes to enterprise agreements. The Commission also highlighted the importance of considering the potential impact of proposed changes on employees' rights and entitlements. The Commission's decision underscores the need for employers to carefully consider the implications of proposed changes to enterprise agreements and to engage in good faith bargaining with employees and their representatives.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established