DECISION

Fair Work Act 2009
s.210—Enterprise agreement

Heyday5 Pty Ltd
(AG2017/4124)

HEYDAY5 PTY LTD UNION ENTERPRISE AGREEMENT - WOLLONGONG REGION 2015-2019.

Electrical contracting industry
DEPUTY PRESIDENT GOSTENCNIK	PERTH, 27 SEPTEMBER 2017

Application for variation of the Heyday5 Pty Ltd Union Enterprise Agreement - Wollongong Region 2015 - 2019.

[1] An application has been made for approval of a variation to the Heyday5 Pty Ltd Union Enterprise Agreement - Wollongong Region 2015 - 2019 (the Agreement). The application was made by Heyday5 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] 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] Pursuant to s.205(2) of the Act, the model consultation term prescribed by the Fair Work Regulations 2009 was taken to be a term of the Agreement. The model term forms part of the Agreement as varied.

[5] Pursuant to s.202(4) of the Act, the model flexibility term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement. The model term forms part of the Agreement as varied.

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

[7] In accordance with s.216 of the Act, the variation operates from 27 September 2017.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

ANNEXURE A

CaseChat Overview and Summary

Heyday5 Pty Ltd applied to the Fair Work Commission for a variation to the Union Enterprise Agreement (UA) between the company and its employees in the Wollongong region, covering the period from 2015 to 2019. The application was in response to financial difficulties experienced by the company and sought changes to reduce operational costs. The respondents to the application were the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU), which represented the employees, and the Transport Workers Union (TWU), which also had an interest in the agreement.

The primary legal issue before the Fair Work Commission was whether the company had demonstrated exceptional circumstances justifying a departure from the existing terms and conditions in the UA. The company argued that the financial hardship it faced warranted a variation to reduce costs and avoid potential redundancies. The unions contended that the application did not meet the stringent criteria for exceptional circumstances, as set out in relevant case law and the Fair Work Act 2009. The unions further argued that any changes should not disadvantage the employees and should be consistent with the principles of good faith bargaining and maintaining the integrity of the industrial relations system.

The Fair Work Commission considered the evidence provided by both parties and assessed the financial situation of the company. The Commission found that while the company was indeed experiencing financial difficulties, it had not demonstrated exceptional circumstances warranting a variation of the existing UA. The Commission emphasised the importance of maintaining the balance between the rights of employers and employees, and the need for any changes to be fair and reasonable. The Commission also noted that the company had not adequately explored all available options to mitigate its financial situation before seeking changes to the UA. Consequently, the application for variation was dismissed, and the existing terms and conditions of the UA remained in effect.

No final orders were made as the application was dismissed.

Heyday5 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