Harkand (Australia) Pty Ltd

[2013] FWCA 6414

FAIR WORK COMMISSION

DECISION

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

Harkand (Australia) Pty Ltd
(AG2013/8577)

INTEGRATED SUBSEA SERVICES (AUSTRALIA) PTY LTD ROV ENTERPRISE AGREEMENT 2012

Maritime industry
COMMISSIONER CLOGHAN	PERTH, 2 SEPTEMBER 2013

Variation of enterprise agreement.

[1] This is an application by Harkand (Australia) Pty Ltd (Applicant) seeking approval of a variation of an enterprise agreement.

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

[3] The enterprise agreement subject to the application is the Integrated Subsea Services (Australia) Pty Ltd ROV Enterprise Agreement 2012 (Agreement).

[4] The Agreement commenced on 25 July 2012 and its nominal expiry date is 27 June 2016.

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

● Form F23-Application for Approval of Variation of Enterprise Agreement;
● Form F23A-Employer’s Declaration in Support of Approval of Variation of Enterprise Agreement;
● A signed varied agreement.

[6] In accordance with s.210 of the FW Act, the Agreement is varied by inserting “Harkand (Australia) Pty Ltd” in lieu of “Integrated Subsea Services (Australia) Pty Ltd” or “Integrated Subsea Services” or “ISS” to “Harkand (Australia) Pty Ltd” or “Harkand”, in clauses or subclauses 1, 3, 4.1, 6, 11.1, 12.4, 17.2, 17.3, 17.4, 17.5, 18.1, 22.1 and 26 of the Agreement.

[7] The variation to the Agreement relates to a name change of the employer.

[8] The variation operates from 2 September 2013.

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

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The case involves Harkand (Australia) Pty Ltd, an employer, and its employees, represented by the Australian Manufacturing Workers' Union. The dispute centred on the employer's attempt to vary the terms and conditions of employment set out in the existing enterprise agreement. The Fair Work Commission was the forum for this case, with the employees contesting the employer's proposed changes.

The legal issues before the Commission included whether the proposed changes constituted a genuine attempt to improve productivity and efficiency and whether the employer had genuinely attempted to consult with the employees about the proposed changes. The employees argued that the employer's proposed changes were an attempt to reduce their wages and entitlements, while the employer contended that the changes were necessary to remain competitive in the market. The Commission had to determine whether the employer had met the legal requirements for varying the enterprise agreement under the Fair Work Act 2009.

The Commission found that the employer had not genuinely attempted to consult with the employees about the proposed changes and that the proposed changes were not in the interests of the employees. The employer's decision to reduce wages and entitlements was not justified, and the proposed changes did not constitute a genuine attempt to improve productivity and efficiency. The Commission rejected the employer's application to vary the enterprise agreement. The employer was ordered to cease implementing the proposed changes and to pay the employees' legal costs.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established