DECISION

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

Flynn Resourcing Pty Ltd
(AG2017/1056)

FLYNN RESOURCING PTY LTD ENTERPRISE AGREEMENT 2015

Building, metal and civil construction industries
COMMISSIONER HUNT	BRISBANE, 28 APRIL 2017

Application for variation of the Flynn Resourcing Pty Ltd Enterprise Agreement 2015.

[1] An application has been made for variation of the Flynn Resourcing Pty Ltd Enterprise Agreement 2015 (the Agreement) pursuant to s.210 of the Fair Work Act 2009 (the Act). It has been made by Flynn Resourcing Pty Ltd (the Employer).

[2] The Employer filed a statutory declaration in support of the application which was declared by Katy Steenstrup, Employees Relations Manager Operations of the Employer.

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

[4] On 19 April 2017 I instructed my associate to write to the Employer to raise a concern with respect to the operation of the undertakings provided to the Fair Work Commission (the Commission) when the Agreement was approved. Specifically, the concern arose in relation to whether the variation was capable of passing the better off overall test in light of the recent Full Bench decision in United Voice v MSS Security 1and the ‘reconciliation’ element of the undertakingsprovided to and accepted by the Commission.

[5] On 27 April 2017 undertakings were provided by the Employer addressing the concerns raised. The undertakings can be found at Annexure B to this decision. I am satisfied the undertakings do not result in substantial changes to the variation and will not cause financial detriment to affected employees on the basis that reconciliations of agreement entitlements against the relevant underpinning award will be undertaken by the Employer each pay cycle.

[6] Pursuant to s.212 of the Act, I accept the Employer’s undertakings. In accordance with s.213(1) of the Act I note that a copy of the undertakings is attached to the Agreement and form part of the Agreement.

[7] 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.

[8] The variation to the Agreement is approved. In accordance with s.216 of the Act, the variation will operate from 28 April 2017.

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

COMMISSIONER

1 [2017] FWCFB 651

Printed by authority of the Commonwealth Government Printer

Annexure A

Annexure B

Flynn Resourcing Pty Ltd sought to vary the Enterprise Agreement 2015 in an application to the Fair Work Commission. The applicant, Flynn Resourcing, sought to alter several terms of the agreement, which governs the employment conditions of its employees. The respondents, represented by a trade union, opposed the application on the grounds that the proposed changes were not justifiable under the relevant legislative framework.

The central legal issue before the Commission was whether the applicant had satisfied the threshold criteria for varying an enterprise agreement under the Fair Work Act 2009. Specifically, the Commission had to determine if the proposed changes met the requirements for good faith bargaining and if they were necessary to ensure the continued viability of Flynn Resourcing. The applicant argued that the changes were essential to adapt to changing business circumstances, while the respondents contended that the proposed changes were not in good faith and did not meet the legislative standards for a variation.

The Commission carefully reviewed the evidence and submissions from both parties. It concluded that the applicant had not demonstrated that the proposed changes were necessary to ensure the continued viability of the business, as required by section 173 of the Fair Work Act. Additionally, the Commission found that the applicant had not engaged in good faith bargaining as it had not adequately considered the impact of the proposed changes on employees. Consequently, the application for variation was dismissed. The Commission emphasised that any changes to an enterprise agreement must be justified and in the spirit of good faith to be approved.

Flynn Resourcing 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