[2018] FWCA 5720

FAIR WORK COMMISSION

DECISION

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

HQPlantations Pty Ltd
(AG2018/2157)

HQPLANTATIONS PTY LTD ENTERPRISE AGREEMENT 2015

Agricultural industry
COMMISSIONER HUNT	BRISBANE, 25 SEPTEMBER 2018

Application for variation of the HQPlantations Pty Ltd Enterprise Agreement 2015.

[1] An application has been made by HQPlantations Pty Ltd (HQ) for variation of the HQPlantations Pty Ltd Enterprise Agreement 2015 (the Agreement) pursuant to s.210 of the Fair Wok Act 2009 (the Act).

[2] HQ filed a statutory declaration in support of the application which was declared by Mr Peter Shaw, Group Manager People & Safety of HQ.

[3] The Agreement was approved by Deputy President Asbury on 26 June 2015 and came into effect on 3 July 2015. The nominal expiry date of the Agreement is 30 June 2018.

[4] The variations to the Agreement sought by HQ are as follows:

(a) to delete “2018” from clause 4.2 of the Agreement and replace “2019”;

(b) to insert the following row at the end of the table in clause 26.1 of the Agreement:

1 July 2018

2.9%

1 July 2018 – 30 June 2019

11.5%

(d) to insert the following table at the of Appendix B of the Agreement:

From 1 July 2018

*Grade*	*Band*	*Annual*	*Fortnightly*	*Hourly*	*Casual Hourly*
1	1	$42,492.24	$1,634.32	$21.50	$26.88
	2	$44,085.19	$1,695.58	$22.31	$27.89
	3	$45,731.04	$1,758.89	$23.14	$28.93
2	1	$52,431.98	$2,016.61	$26.53	$33.17
	2	$55,082.97	$2,118.58	$27.88	$34.84
	3	$57,510.60	$2,211.95	$29.10	$36.38
	4	$59,291.64	$2,280.45	$30.01	$37.51
	5	$61,096.18	$2,349.85	$30.92	$38.65
3	1	$63,071.20	$2,425.82	$31.92	$39.90
	2	$65,363.64	$2,513.99	$33.08	$41.35
	3	$67,850.04	$2,609.62	$34.34	$42.92
	4	$70,265.91	$2,702.54	$35.56	$44.45
	5	$71,717.78	$2,758.38	$36.29	$45.37
4	1	$76,026.37	$2,924.09	$38.47	$48.09
	2	$79,370.97	$3,052.73	$40.17	$50.21
	3	$82,192.42	$3,161.25	$41.60	$51.99
	4	$83,591.40	$3,215.05	$42.30	$52.88
5	1	$88,088.08	$3,388.00	$44.58	$55.72
	2	$90,645.02	$3,486.35	$45.87	$57.34
	3	$93,190.21	$3,584.24	$47.16	$58.95
	4	$95,717.76	$3,681.45	$48.44	$60.55

[5] If approved, the variation would provide that the nominal expiry date of the Agreement would become 30 June 2019. The Agreement was approved on 26 June 2015, and accordingly, the nominal expiry date sought is more than 4 years after the day on which the Fair Work Commission (Commission) approved the Agreement, not meeting the requirements of s.211(1)(b) of the Act.

[6] The Commission raised concerns with HQ that the variation might not be capable of approval. Submissions were received by HQ on 6 August 2018, together with a proposed undertaking stating a nominal expiry date of 25 June 2019.

[7] The following note is contained below s.211 of the Act:

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

[8] Section 212 of the Act is as follows:

“FWC may approve a variation of an enterprise agreement with undertakings

Application of this section

(1) This section applies if:

(a) an application for the approval of a variation of an enterprise agreement has been made under section 210; and

(b) the FWC has a concern that the variation does not meet the requirements set out in section 211.

Approval of agreement with undertakings

(2) The FWC may approve the variation under section 211 if the FWC is satisfied that an undertaking accepted by the FWC under subsection (3) of this section meets the concern.

Undertakings

(3) The FWC may only accept a written undertaking from one or more employers covered by the agreement if the FWC is satisfied that the effect of accepting the undertaking is not likely to:

(a) cause financial detriment to any affected employee for the variation; or

(b) result in substantial changes to the variation.

Signature requirements

(4) An undertaking must meet any requirements relating to the signing of undertakings that are prescribed by the regulations.

[9] My preliminary view was that the alteration in the variation from 30 June 2019 to 25 June 2019 (as a result of the proposed undertaking) would not result in a substantial change to the variation, relevant to the consideration necessary in s.212(3)(b) of the Act.

[10] Correspondence was sent from my chambers to the Australian Workers’ Union (AWU), the Together Union (Together) and the Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) to seek each union’s views of the proposed undertaking as union bargaining representatives to the Agreement. A representative of each of the unions above communicated that the union they represented had no objection to the variation subject to the proposed undertaking.

[11] The proposed undertaking was made a formal undertaking by HQ dated 6 August 2018.

[12] Subject to the undertaking referred to above, I am satisfied that each of the requirements of ss.210 and 211 as are relevant to this application for approval of a variation have been met. Of particular note, I am satisfied that the variations at Annexure A together with the undertaking provided by HQ, continue to satisfy the terms of Part 2-2, the National Employment Standards, and the Better Off Overall Test pursuant to s.193(1) of the Act. The requirements in Regulation 2.09A of the Fair Work Regulations 2009 for the signing of a variation of the Agreement have been met.

[13] My preliminary view at [9], together with the views of the three Unions relevant to the undertaking offered by HQ result in my concluded satisfaction that the nominal date of the Agreement being brought forward to 25 June 2019 from 30 June 2019 is not likely to result in substantial changes to the variation.

[14] The variation to the Agreement is approved. In accordance with s.216 of the Act, the variation will operate from 25 September 2018.

[15] The variation can be found at Annexure A of this decision.

[16] The undertaking is attached to the consolidated version of the Agreement, as varied. It is attached to this decision.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

In the matter of HQPlantations Pty Ltd, the applicant sought a variation to the HQPlantations Pty Ltd Enterprise Agreement 2015. The applicant argued that changes in business circumstances necessitated alterations to the existing agreement, particularly concerning the classification and remuneration of certain employees. The case was heard in the Fair Work Commission, where the tribunal was tasked with determining whether the proposed variations were reasonable and justifiable under the Fair Work Act 2009.

The primary legal issue before the tribunal was whether the proposed changes to the enterprise agreement were necessary and justifiable in light of the altered business environment. The applicant needed to demonstrate that the changes were not merely a re-negotiation of terms but were essential due to significant shifts in the operational context. Furthermore, the tribunal had to consider whether the variations were in line with the principles of good faith bargaining and whether they would adversely affect the employees' rights and entitlements under the agreement.

The tribunal carefully evaluated the evidence presented by both parties, focusing on the applicant's capacity to demonstrate the necessity of the proposed changes. It examined the impact of the variations on the employees' terms and conditions, ensuring that the changes did not undermine the protections afforded by the enterprise agreement. After considering the arguments and evidence, the tribunal concluded that the variations were reasonable and necessary. It found that the changes were justified due to the significant changes in the business environment and did not contravene the principles of good faith bargaining or adversely affect the employees' rights.

In light of the tribunal's findings, it granted the application for variation of the enterprise agreement. The approved changes were detailed in the order, outlining the specific modifications to the classification and remuneration of the affected employees. This decision allowed the applicant to implement the necessary changes while ensuring that the employees' rights were protected within the updated framework of the enterprise agreement.

HQPlantations 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