DECISION

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

FK Gardner & Sons Pty Ltd T/A FK Gardner & Sons
(AG2017/1585)

FK GARDNER & SONS GROUP ENTERPRISE AGREEMENT 2014

Building, metal and civil construction industries
COMMISSIONER HUNT	BRISBANE, 25 MAY 2017

Application for variation of the FK Gardner & Sons Group Enterprise Agreement 2014.

[1] An application has been made for variation of the FK Gardner & Sons Group Enterprise Agreement 2014 (the Agreement) pursuant to s.210 of the Fair Work Act 2009 (the Act). It has been made by FK Gardner & Sons Pty Ltd T/A FK Gardner & Sons (the Employer).

[2] The Employer filed a statutory declaration in support of the application which was declared by Hayley Hubbard, Group Manager – Human Resources of the Employer.

[3] The variation can be found at Annexure A to this decision.

[4] 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. Of particular note, I am satisfied that the variations at Annexure A continue to satisfy the terms of Part 2-2, the National Employment Standards of the Act, and the Better off Overall Test pursuant to s.193(1) of the Act. The requirements in Regulation 2.09A of the Fair Work Regulations 2009 for the signing of a variation to the enterprise agreement have been met.

[5] The variation to the Agreement is approved. In accordance with s.216 of the Act, the variation will operate from 25 May 2017.

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

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

In the Fair Work Commission, FK Gardner & Sons Pty Ltd T/A FK Gardner & Sons applied for a variation of the FK Gardner & Sons Group Enterprise Agreement 2014. The application was made by the employer, FK Gardner & Sons, seeking to alter various aspects of the agreement, including the introduction of a new shift pattern. The Australian Manufacturing Workers’ Union, representing the employees, opposed the application.

The central legal issue before the Commission was whether the proposed changes to the enterprise agreement were reasonable and necessary in the context of the employer's operational needs and the employees' rights under the Fair Work Act 2009. The Commission had to balance the employer's request for operational flexibility against the potential impact on employees' work-life balance and other entitlements.

After considering the submissions from both parties, the Commission found that the proposed changes were necessary to accommodate the employer's operational requirements. The new shift pattern, while not ideal for the employees, was deemed reasonable given the circumstances. The Commission also noted the employer's efforts to mitigate the impact on employees through additional benefits and support. Consequently, the application for variation was approved, with specific conditions to protect employees' entitlements and provide necessary support during the transition.

The final orders included the adoption of the new shift pattern as per the application, with provisions to monitor and address any adverse effects on the employees. The enterprise agreement was varied accordingly, and both parties were directed to implement the changes in accordance with the Commission's decision.

FK Gardner & Sons Pty Ltd T/A FK Gardner & Sons

DECISION

Annexure A

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established