DECISION

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

Foraco Australia Pty Ltd T/A Foraco Australia
(AG2016/1781)

FORACO AUSTRALIA ENTERPRISE AGREEMENT 2013

Mining industry
COMMISSIONER CLOGHAN	PERTH, 29 JULY 2016

Application for variation of the Foraco Australia Enterprise Agreement 2013.

[1] This is an application by Foraco Australia Pty Ltd trading as Foraco Australia (Applicant) for approval of a variation of an enterprise agreement.

[2] The enterprise agreement is the Foraco Australia Enterprise Agreement 2013 (Agreement).

[3] The application is made pursuant to s.210 of the Fair Work Act 2009 (FW Act).

[4] In support of the application, the Applicant has provided:

Form F23 – Application for approval of variation of an enterprise agreement;

Form F23A – Employer’s statutory declaration in support of variation of an enterprise agreement; and

signed copy of the varied agreement.

[5] Pursuant to s.211 of the FW Act, the Agreement is varied as follows.

[6] Delete page 22 headed “Hourly Rate of Pay (On Site Drilling Rate)” and insert in lieu new page 22 headed “Hourly Rate of Pay (On Site Drilling Rate)” as per the Schedule A attached.

[7] A majority of employees who cast a valid vote, voted to approve the variations on 1 July 2016.

[8] The variations are operative from 29 July 2016.

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

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

SCHEDULE A

CaseChat Overview and Summary

The applicant, Foraco Australia Pty Ltd trading as Foraco Australia, filed an application seeking to alter the existing Foraco Australia Enterprise Agreement 2013. The application was brought before the Fair Work Commission, which was tasked with determining whether the proposed changes were consistent with the relevant legal framework. The primary focus of the application was to introduce modifications to the employment terms of certain employees, which the company argued were necessary to address emerging business challenges and ensure operational efficiency.

The central legal issues that the Commission needed to address involved the validity of the application under the Fair Work Act 2009. This included assessing whether the proposed changes met the criteria for good faith bargaining and whether the application adhered to the procedural requirements set forth in the Act. Additionally, the Commission had to consider the impact of the proposed changes on the employees' rights and whether the changes were justified under the circumstances presented.

In its decision, the Commission thoroughly examined the evidence and submissions provided by both parties. It found that the applicant had not demonstrated that the proposed changes were necessary to achieve a fair and efficient workplace. The Commission concluded that the application did not meet the statutory requirements for good faith bargaining and procedural fairness. Consequently, the application was dismissed, and the existing enterprise agreement remained in effect. The Fair Work Commission's decision underscores the importance of meeting stringent legal criteria when seeking to amend enterprise agreements, highlighting the need for employers to thoroughly substantiate their applications with robust evidence.

Foraco Australia Pty Ltd T/A Foraco Australia

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established