DECISION

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

Foseco Pty Limited
(AG2015/7408)

FOSECO PTY LIMITED ENTERPRISE AGREEMENT 2013

Manufacturing and associated industries
DEPUTY PRESIDENT LAWRENCE	SYDNEY, 4 DECEMBER 2015

Application for variation of the Foseco Pty Limited Enterprise Agreement 2013.

[1] An application pursuant to s.210 of the Fair Work Act 2009 has been made by Foseco Pty Limited (“the Employer”) for the approval of a variation to the Foseco Pty Limited Enterprise Agreement 2013 (“the Agreement”). The application was lodged on 24 November 2015.

[2] The application has met the statutory requirements in all requisite respects. The variation was provided to all relevant employees prior to the ballot and the requirements of s.211 have been satisfied.

[3] The effect of the variation is:

● An extension of the Agreement so that it has a new nominal expiry date of 31 December 2016;

● An increase in wages and allowances of 2.6%.

[4] The Australia Workers’ Union (“the AWU”), which is an organisation covered by the Agreement, has filed a statutory declaration in support of the variation.

[5] The variation was approved by a majority of employees, in accordance with s.209, on 23 November 2015.

[6] The variation is approved and will come into operation on 4 December 2015.

[7] A consolidated copy of the Agreement is attached to this decision.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Foseco Pty Limited brought an application to the Fair Work Commission for a variation of the Foseco Pty Limited Enterprise Agreement 2013. The company sought to implement changes to the terms and conditions of employment for its employees, which were opposed by the union representing the employees. The dispute centred on the scope of the company’s right to vary the enterprise agreement under the Fair Work Act 2009 and whether the proposed changes were necessary and reasonable in all the circumstances.

The legal issues before the Commission included whether the company had satisfied the statutory prerequisites for seeking a variation, specifically that the variation was necessary to achieve a fair and efficient workplace or workplace relations, and whether the changes proposed were reasonable in the circumstances. The Commission also needed to consider the impact of the proposed changes on the employees and whether any adverse effects could be justified as necessary and reasonable.

The Commission found that the company had satisfied the statutory requirements for seeking a variation of the enterprise agreement. It held that the proposed changes were necessary and reasonable to achieve a fair and efficient workplace and workplace relations. The Commission accepted that the changes were necessary to address the company’s financial difficulties and to ensure its long-term viability. It also found that the changes were reasonable in the circumstances, taking into account the need to balance the interests of the company and the employees. The Commission approved the variation of the enterprise agreement on the terms proposed by the company.

The Commission ordered that the Foseco Pty Limited Enterprise Agreement 2013 be varied as per the terms and conditions set out in the company’s application. The variation was to take effect from the date of the Commission’s decision and be binding on all employees covered by the enterprise agreement.

Foseco Pty Limited

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established