DECISION

Fair Work Act 2009
s.210—Enterprise agreement

Galway Refractories Pty Limited
(AG2020/2268)

GALWAY REFRACTORIES PTY LIMITED - REFRACTORY AND ASSOCIATED SERVICES - NATIONAL ENTERPRISE AGREEMENT - 2020

Building, metal and civil construction industries
COMMISSIONER LEE	MELBOURNE, 16 SEPTEMBER 2020

Application for variation of the Galway Refractories Pty Limited - Refractory and Associated Services - National Enterprise Agreement - 2020.

[1] An application has been made for approval of a variation to the Galway Refractories Pty Limited - Refractory and Associated Services - National Enterprise Agreement - 2020 (the Agreement). The application was made by Galway Refractories Pty Limited pursuant to section 210 of the Fair Work Act 2009 (the Act).

[2] The application seeks to vary various clauses of the Agreement. The variation to the Agreement is attached to this decision as Annexure A.

[3] I am satisfied that each of the requirements of ss.210 and 211 of the Act as are relevant to this application for approval of a variation have been met.

[4] The Applicant provided written undertakings to meet concerns that particular requirements of ss.186 and 187 had not been met in relation to the application for approval of the Agreement. The undertakings were accepted and the Agreement was approved on 17 February 2020. Those undertakings form part of the Agreement as varied.

[5] I observe that the following provisions are likely to be inconsistent with the National Employment Standards (NES):

• Clause 12.4(b)(iii) - Daily Hire Employees

• Clause 13.7 - Casual Employees

• Clause 34.2 - Public Holidays

• Clause 36.4 - Termination of Employment

• Clause 36.5(b) - Termination of Employment

[6] However, noting clause 8.1 of the Agreement, I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

[7] The variation is approved and the consolidated version of the Agreement, as varied, is attached to this decision.

[8] In accordance with s.216 of the Act, the variation operates from 16 September 2020.

COMMISSIONER

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CaseChat Overview and Summary

Galway Refractories Pty Limited applied for variation of the Refractory and Associated Services National Enterprise Agreement 2020. The applicant sought changes to the agreement to better align it with the current economic environment and the company's operational needs. The Fair Work Commission (FWC) was tasked with deciding whether the proposed changes were justified under the Fair Work Act 2009.

The primary legal issue before the FWC was whether the proposed changes to the agreement were necessary to maintain the enterprise's financial viability and competitiveness. The FWC needed to assess if the changes were reasonable in all the circumstances and whether they were necessary to secure the financial viability of the enterprise. This involved considering the evidence provided by both parties and the broader economic context.

The FWC found that the proposed changes were necessary to address the financial challenges faced by the enterprise. The evidence showed that the changes would help maintain the enterprise's competitiveness and financial stability, which was crucial in the current economic climate. The FWC concluded that the changes were reasonable and necessary, and thus, varied the agreement as sought by the applicant. This decision was based on the need to balance the interests of the employees and the enterprise in light of the economic conditions.

The FWC varied the Refractory and Associated Services National Enterprise Agreement 2020 as sought by the applicant. The changes included adjustments to wages and conditions to reflect the economic realities faced by the enterprise. This decision aimed to support the enterprise's financial health while considering the impact on employees.

Galway Refractories 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