Giacci Bros Pty Ltd

[2016] FWCA 3534

[2016] FWCA 3534

FAIR WORK COMMISSION

DECISION

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

Giacci Bros Pty Ltd
(AG2016/987)

GIACCI BROTHERS PTY LTD, WESTERN AUSTRALIAN ENTERPRISE AGREEMENT 2013

Road transport industry
DEPUTY PRESIDENT BINET	PERTH, 20 JUNE 2016

Application for variation of the Giacci Brothers Pty Ltd, Western Australian Enterprise Agreement 2013.

[1] Giacci Bros Pty Ltd (Giacci Bros) has made an application (Application) for the approval of a variation of the Giacci Brothers Pty Ltd, Western Australian Enterprise Agreement 2013 (Agreement) pursuant to section 210 of the Fair Work Act 2009 (FW Act).

[2] The Agreement is a single-enterprise agreement made pursuant to section 185 of the FW Act with a nominal expiry date of 28 May 2018. The variation to the Agreement was made on 7 April 2016.

[3] The Transport Workers’ Union of Australia (TWU) is a party to the Agreement.

[4] The Reference Instruments are the Road Transport and Distribution Award 2010 and the Vehicle Manufacturing Repair, Services and Retail Award 2010 (in relation to tradesperson and trades assistant rates) (collectively the Award).

[5] In summary Giacci Bros are seeking to vary the Agreement as follows.

● Freeze the pay rate increase for specified classifications scheduled to occur in July 2016.

● Provide employees with the opportunity to cash out accrued annual leave.

● Insert a new clause to set apprentice rates in line with the award.

[6] Sections 210 and 211 of the FW Act sets out the conditions which must be met for an agreement to be varied by the Fair Work Commission (FWC). Section 211(1) provides as follows:

    “211 When the FWC must approve a variation of an enterprise agreement

Approval of variation by the FWC

(1) If an application for the approval of a variation of an enterprise agreement is made under section 210, the FWC must approve the variation if:

(a) the FWC is satisfied that had an application been made under subsection 182(4) or section 185 for the approval of the agreement as proposed to be varied, the FWC would have been required to approve the agreement under section 186; and

(b) the FWC is satisfied that the agreement as proposed to be varied would not specify a date as its nominal expiry date which is more than 4 years after the day on which the FWC approved the agreement;

unless the FWC is satisfied that there are serious public interest grounds for not approving the variation.

Note: The FWC may approve a variation under this section with undertakings (see section 212).”

[7] In accordance with subsection 210(2)(c) of the FW Act the Application was supported by:

a) a statutory declaration in support of the variation by Mr Tyler Matthew Counsel (Counsel Statutory Declaration); and

b) a statutory declaration of employee organisation in relation to the variation by Mr Joshua Dalliston (Dalliston Statutory Declaration).

[8] A signed copy of the proposed variations was filed by Giacci Bros as required by section 210(2)(a) of the FW Act and is attached to this decision at Annexure A.

[9] A consolidated version of the Agreement, as varied, was filed by Giacci Bros as required by subsection 210(2)(b) of the FW Act and is provided with this decision.

[10] According to the Counsel Statutory Declaration, the variation was made on 7 April 2016 however the Application was not lodged until 22 April 2016. The Application was therefore lodged a day late. An extension of time was sought and granted pursuant to subsection 210(3)(b) of the FW Act on the grounds that the delay was short and in the circumstances it was fair to extend the period of lodgment.

[11] I am satisfied that each of the requirements of section 210 the FW Act as are relevant to the Application for approval have been met.

[12] On 12 May 2016 Giacci Bros were directed to provide evidence as to whether employees covered by the Agreement are better off overall under the Award or the Agreement as proposed to be varied (Directions). The material provided by Giacci Bros indicates that while the variation results in a reduction in rates of pay otherwise payable under the Agreement, the varied rate of pay is still in excess of the Award (BOOT Evidence). The same material also indicates that the other variations provide benefits to those bound by the Agreement.

[13] In the same Directions, Giacci Bros were instructed to provide the Boot Evidence, a copy of the Application, and a copy of the Directions to all employees whose terms of employment are regulated by the Agreement. The Directions contained an invitation for any employee whose terms of employment are regulated by the Agreement, who wished to be heard with respect to the Application, to contact my Chambers by close of business on Wednesday 1 June 2016.

[14] On 18 May 2016 Mr Counsel confirmed in a statutory declaration that the Boot Evidence, a copy of the Application and a copy of the Directions had been provided to all employees currently covered by the Agreement.

[15] No applications to be heard were received from any employees of Giacci Bros on or before close of business on Wednesday 1 June 2016.

[16] Based on the material that is before me, and in the absence of any request from an employee to heard, I am satisfied that, had the Application been made under section 185 of the FW Act for the approval of the Agreement as proposed to be varied, I would have been required to approve the Agreement under section 186 of the FW Act.

[17] The expiry date of the Agreement is not proposed to be varied by the variations.

[18] In relation to the question of whether there are serious public interest grounds for not approving the variation, Giacci Bros submitted that the approval of the variation will help Giacci Bros continue a sustainable business in challenging market conditions brought about by a macro economic downturn. According to Giacci Bros, the variation will also help maximise employment opportunities for new employees and maximise the earnings potential and job security of existing employees.

[19] I am satisfied that there are no serious public interest grounds for not approving the variation.

[20] Having been satisfied that sections 210 and 211 of the FW Act have been met, the variation of the Agreement is therefore approved and will operate from the date of this decision.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<Price code G, AE408386  PR581042>

ANNEXURE A