Gagliardi Bros Pty Ltd

[2017] FWCA 4313

[2017] FWCA 4313

FAIR WORK COMMISSION

decision

Fair Work Act 2009

s.210 - Application for approval of a variation of an enterprise agreement

Gagliardi Bros Pty Ltd

(AG2017/3475)

GAGLIARDI BROS PTY LTD ENTERPRISE AGREEMENT 2016

Building, metal and civil construction industries
Deputy President Anderson	ADELAIDE, 18 AUGUST 2017

Application for variation of the Gagliardi Bros Pty Ltd Enterprise Agreement 2016

1. An application has been made under section 210 of the Fair Work Act 2009 (the FW Act) for approval of a variation to an enterprise agreement known as the Gagliardi Bros Pty Ltd Enterprise Agreement 2016. The agreement is a single enterprise agreement. The application has been made by the employer, Gagliardi Bros Pty Ltd.

1. The Agreement has operated since 5 July 2016. It has a nominal expiry date of 5 July 2018. It was approved by the Fair Work Commission on 28 June 2016.[1]

1. No union is covered by the Agreement nor a bargaining representative for an employee under the Agreement.

1. The application is accompanied by a statutory declaration by an officer or authorised employee of the applicant. That declaration states that the variation was agreed by employees on 21 July 2017.

1. The variation amends a description in clause 2.2.6 of the Agreement (Grievance/Disputes Procedure) and makes a minor change to clauses 6.2.4 (Annual Leave). The applicant says that both these variations are necessary to bring the Agreement into compliance with the Code for the Tendering and Performance of Building Work 2016 (the 2016 Building Code).

1. The variation also amends clause 5.1.1 (Ordinary Hours of Work) by substituting ordinary hours as 38 per week in lieu of the existing 36 hours, and makes a consequential change to clause 5.2.2 of the Agreement (Rostered Days Off/Leisure Days Off). The Applicant says that these are not variations necessary to bring the Agreement into compliance with the 2016 Building Code. Rather, the applicant says they are matters separately negotiated with the relevant employees. The applicant considered it convenient to have the Code related variations and the hours variations voted at the same time, and pursued in the same application.

1. The application is not made within 14 days after the variation was made as required by section 210(3) of the FW Act. It is six days out of time. The applicant seeks an extension of time under section 210(3)(b). In support of that application, the applicant indicates that the employer is a small family business and that the officer managing the matter did not appreciate that the variation needed to be lodged for approval. The applicant also refers to potential commercial prejudice should the variation not be made and the Agreement be found to not conform with the 2016 Building Code.

1. I consider that, in all the circumstances, it is fair to extend the period for making the application under section 210(3)(b) of the FW Act so as to enable its determination.

1. I have given consideration to both the variations related to the 2016 Building Code compliance, and the hours of work variations. I note the evidence in paragraph 3.7 of the statutory declaration of Lorena Gagliardi that the variation does not make any terms or conditions of employment less beneficial than equivalent terms and conditions in the reference instrument (Building and Construction General Onsite Award 2010). I note that the Agreement, when first made, was approved by Commissioner Roe without undertakings. I note that the Building and Construction General Onsite Award 2010 provides for 38 ordinary hours of work. I am satisfied that the Agreement, as varied, would pass the better off overall test (section 186(2)(d) of the FW Act).

1. I have considered the application and the accompanying declaration in support. I am satisfied that each of the requirements in sections 210 and 211 of the FW Act as relevant to this application for approval have been met.

1. I consider that the varied dispute resolution clause continues to provide a term in the Agreement for the settling of disputes that is consistent with the provisions of section 186(6)(a) of the FW Act. Further, there are no serious public interest grounds for not approving the variation.

1. The variation to the Agreement is approved and will operate from 12.01am 18 August 2017.

1. A consolidated version of the Agreement, as varied, is attached to this decision.

DEPUTY PRESIDENT

[1] [2016] FWCA 4195 per Commissioner Roe

Printed by authority of the Commonwealth Government Printer

<Price code G, AE419587  PR595452>