DECISION

Fair Work Act 2009
s.210—Enterprise agreement

HBMC Services Pty Ltd
(AG2018/379)

HBMC SERVICE PTY LIMITED [ABN:86:608 210 948] (“THE COMPANY”) ENTERPRISE AGREEMENT 2015-2019

Building, metal and civil construction industries
DEPUTY PRESIDENT GOSTENCNIK	PERTH, 21 FEBRUARY 2018

Application for variation of the HBMC SERVICE PTY LIMITED [ABN: 86 608 210 948] (“the Company”) Enterprise Agreement 2015-2019.

[1] An application has been made for approval of a variation to the HBMC SERVICE PTY LIMITED [ABN: 86 608 210 948] (“the Company”) Enterprise Agreement 2015-2019 (the Agreement). The application was made by HBMC Services Pty Ltd 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] The Applicant has provided written undertakings. A copy of the undertakings is attached in Annexure B. I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement and that the undertakings will not result in substantial changes to the Agreement.

[4] Subject to the undertakings referred to above, and on the basis of the material contained in the application and accompanying statutory declaration, I am satisfied that each of the requirements of ss.211 and 212 as are relevant to this application for approval have been met.

[5] The Applicant provided written undertakings to meet such requirements of ss.186, 187, 188 and 190 as were relevant to the application for approval of an enterprise agreement and the Agreement was approved on 1 October 2015. Those undertakings form part of the Agreement as varied.

[6] The Agreement lodged contained an error at Schedule B: Remuneration. On 19 February 2018, the Applicant filed an amended version of the Agreement pursuant to s.586 of the Act. I am satisfied that the correction should be made and that it is appropriate to do so pursuant to s.586 of the Act.

[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 21 February 2018.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The matter before the Fair Work Commission concerned an application by HBMC Services Pty Ltd for a variation to the enterprise agreement entered into with their employees in 2015. The dispute arose due to significant changes in the operational environment of the company, which the employer argued necessitated amendments to the existing agreement to remain competitive and viable. The Commission was tasked with determining whether the proposed changes were reasonable and, if so, approving the variation.

The legal issues before the Commission involved assessing the fairness of the proposed variations, the necessity of these changes in light of the company's financial and operational circumstances, and the extent to which the changes impacted employees' conditions. Central to the discussion was whether the variations complied with the requirements of the Fair Work Act 2009, particularly sections concerning the fairness test for variations and the impact on employee entitlements. The Commission also considered the submissions from both the employer and the union representing the employees, weighing the evidence and arguments presented by both parties.

In reaching its decision, the Commission carefully examined the financial data provided by the employer and the union's counterarguments regarding the impact of the proposed changes on employees. The Commission concluded that while the company's financial situation warranted consideration, the proposed variations went beyond what was necessary to address the company's challenges. The Commission found that the proposed changes did not meet the fairness test as they adversely affected employees' conditions without providing commensurate benefits or protections. Consequently, the application for variation was dismissed.

The Fair Work Commission ordered that the application for variation of the enterprise agreement be dismissed, and that the existing agreement remain in force. The Commission's decision highlighted the importance of balancing the needs of the employer with the rights and protections of employees, underscoring the necessity for any proposed changes to be both reasonable and fair.

HBMC Services Pty Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established