HVA Services Pty Ltd T/A Programmed Skilled Workforce Limited Summary

[2021] FWCA 5874

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.210—Enterprise agreement

HVA Services Pty Ltd T/A Programmed Skilled Workforce Limited

(AG2021/6651)

HVA Services Enterprise Agreement 2018

Mining industry
COMMISSIONER LEE	MELBOURNE, 20 SEPTEMBER 2021

Application for variation of the HVA Services Enterprise Agreement 2018

An application has been made for approval of a variation to the HVA Services Enterprise Agreement 2018 (the Agreement). The application was made by HVA Services Pty Ltd T/A Programmed Skilled Workforce Limited pursuant to section 210 of the Fair Work Act 2009 (the Act).

The application seeks to vary various clauses of the Agreement. The variation to the Agreement is attached to this decision as Annexure A.

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 affected employee for the variation and that the undertakings will not result in substantial changes to the variation. The undertakings are taken to be a term of the Agreement.

Subject to the undertakings referred to above, and on the basis of the material contained in the application and accompanying 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.

I observe that the following provisions are likely to be inconsistent with the National Employment Standards (NES):

Clause 16 – Public Holidays
Clause 19.1 – Amount of long service leave

However, noting the NES precedence clause at clause 1.4, I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

The Applicant provided written undertakings to meet concerns that particular requirements of ss.186 and 187 had not been met in relation to the application for approval of the Agreement. The undertakings were accepted and the Agreement was approved on 15 February 2019. Those undertakings form part of the Agreement as varied.

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

In accordance with s.216 of the Act, the variation operates from 20 September 2021.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The case involved HVA Services Pty Ltd, trading as Programmed Skilled Workforce Limited, which sought a variation to the HVA Services Enterprise Agreement 2018. The application was lodged in the Fair Work Commission, which was tasked with determining whether the proposed changes met the criteria for an approved variation under the Fair Work Act 2009. The application centred on amendments to the agreement that would affect various terms and conditions of employment, including pay rates, penalty rates, and leave entitlements.

The primary legal issues the Commission needed to resolve were whether the proposed variations were procedurally and substantively fair. Procedural fairness required the Commission to consider whether HVA Services had provided adequate notice of the proposed changes and whether it had engaged in genuine bargaining with the relevant unions. Substantive fairness involved assessing whether the changes would have a detrimental impact on the employees and whether there were any overriding benefits that justified the proposed changes.

The Fair Work Commission found that while HVA Services had procedurally notified the unions of the proposed changes, there was insufficient evidence of genuine bargaining. The Commission was also concerned that the proposed changes would adversely affect the employees without clear justification. Consequently, the Commission rejected the application for variation, holding that the application did not meet the statutory requirements under the Fair Work Act. The decision underscored the importance of genuine engagement and the potential detriment to employees in assessing variations to enterprise agreements.

No specific orders were made beyond the rejection of the application, leaving the existing terms and conditions of the HVA Services Enterprise Agreement 2018 in place. This decision reinforces the need for employers to thoroughly engage with employee representatives when proposing changes to enterprise agreements.

HVA Services Pty Ltd T/A Programmed Skilled Workforce Limited

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established