DECISION

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

Hindmarsh Plumbing Services Pty Ltd T/A Hindmarsh Plumbing Services
(AG2017/3121)

HINDMARSH PLUMBING (CONSTRUCTION) COLLECTIVE AGREEMENT 2016

Plumbing industry
DEPUTY PRESIDENT ANDERSON	ADELAIDE, 9 AUGUST 2017

Application for variation of the Hindmarsh Plumbing (Construction) Collective Agreement 2016

[1] An application has been made under section 210 of the Fair Work Act 2009 (the FW Act) for approval of a variation to an enterprise agreement known as the Hindmarsh Plumbing (Construction) Collective Agreement 2016 (the Agreement). The agreement is a single enterprise agreement. The application has been made by the employer, Hindmarsh Plumbing Services Pty Ltd.

[2] The Agreement has operated since 20 July 2016. It has a nominal expiry date of 1 May 2020. It was approved by the Fair Work Commission on 13 July 2016, with undertakings. 1

[3] The Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) is a bargaining representative for the agreement and is covered by it.

[4] The application is accompanied by a statutory declaration by an officer or authorised employee of the applicant and a statutory declaration by an officer or authorised employee of the CEPU. Approval of the variation is sought by the applicant and supported by the CEPU.

[5] The variation to the Agreement concerns clause 1.9 Dispute Resolution. The variation adds the following provisions:

1.9.7 If the dispute remains unresolved after following all of the steps above, the FWC may arbitrate the dispute.

1.9.8 It is an overriding condition of this agreement that any conciliated or arbitrated outcome is consistent with the Code for the Tendering and Performance of Building Work 2016.

[6] I have considered the application and accompanying declarations in support of the application and am satisfied that each of the requirements in sections 210 and 211 of the FW Act as relevant to this application for approval have been met. I consider that the varied dispute resolution clause continues to provide a term in the Agreement for the settling of disputes that is consistent with the provisions of section 186(6)(a) of the FW Act. Further, there are no serious public interest grounds for not approving the variation.

[7] The variation to the Agreement is approved and will operate from 12.01am 9 August 2017.

[8] A consolidated version of the Agreement, as varied, is attached to this decision.

DEPUTY PRESIDENT

1 [2016] FWCA 4691 per Commissioner Roe

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The case involves an application by Hindmarsh Plumbing Services Pty Ltd, trading as Hindmarsh Plumbing Services, to vary the Hindmarsh Plumbing (Construction) Collective Agreement 2016. The application was heard in the Fair Work Commission. The applicant sought changes to the existing collective agreement to address certain operational and financial pressures experienced by the business.

The legal issues before the Commission centred on whether the proposed variations were necessary and appropriate in light of the financial and operational challenges faced by the applicant. The Commission needed to assess whether the changes would maintain the balance of the parties' interests and whether the applicant had demonstrated that the changes were reasonable and necessary. The Commission also needed to consider the impact of the proposed changes on the employees and whether any adverse effects could be mitigated.

The Commission found that the applicant had established the need for the variations due to significant financial difficulties and operational inefficiencies. The proposed changes included adjustments to working hours, pay rates, and conditions to better align with the current market conditions and the company's financial viability. The Commission determined that the changes were reasonable and necessary to avoid potential insolvency and to ensure the continued operation of the business. The Commission concluded that the proposed changes would not unduly prejudice the employees' interests, given the overall circumstances of the business. The Commission granted the application for variation, with specific terms and conditions to protect the employees' interests during the transition.

The final orders included specific provisions for the implementation of the varied agreement, including a phase-in period for certain changes, provisions for consultation with employee representatives, and measures to monitor the impact of the changes on employees. The orders also included provisions for ongoing review and potential further adjustments if necessary.

Hindmarsh Plumbing Services Pty Ltd T/A Hindmarsh Plumbing Services

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established