Infraworks Construction Pty Ltd

[2013] FWCA 3938

FAIR WORK COMMISSION

DECISION

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

Infraworks Construction Pty Ltd
(AG2013/6921)

INFRAWORKS CONSTRUCTION PTY LTD ENTERPRISE AGREEMENT CIVIL WORKS 2011 - 2013

Building, metal and civil construction industries
COMMISSIONER MACDONALD	SYDNEY, 20 JUNE 2013

Application for approval of the variation of the Infraworks Construction Pty Ltd Enterprise Agreement Civil Works 2011-2013.

[1] An application has been made for approval of a variation to an agreement known as Infraworks Construction Pty Ltd Enterprise Agreement Civil Works 2011-2013. The application has been made pursuant to section 210 of the Fair Work Act 2009 [the Act] and was made by Infraworks Construction Pty Ltd.

[2] Sections 210(2) and 210(3) of the Act have been complied with by the employer.

[3] The variations to the existing Agreement go to:

Page 1 of 26	Date change, from 2011-2013 to 2013-2015
Page 2 of 26	Clause 2, change of Company address from 5 Squill Place, Arndell Park to 26 Bosci Road, Ingleburn
Page 15 of 26	Clause 14.1, first paragraph “Hours of Work”, Removed “averaged over a 26 week period” added “Monday to Friday”. Removed “Sunday” and added “Friday”.
Page 15 of 26	Clause 14.1, third paragraph “Hours of Work”, Removed“averaged where applicable over a 26 week period”.
Page 17 of 26	Clause 14.4, first paragraph “Hours of Work - Shift Work”, Removed ‘Sunday” added “Friday”. Removed “inclusive averaged over a 26 week period”.
Page 25 of 26	Replaced “Schedule A: Old Pay Rates” with new “Schedule A: New Pay Rates, page 25 of 26”.

[4] In accordance with section 216 of the Act, this variation operates on and from 20 June 2013.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Infraworks Construction Pty Ltd applied for the approval of a variation of their Enterprise Agreement, which covered civil works for the period 2011-2013. The application was made to the Fair Work Commission, which has jurisdiction over enterprise agreements under the Fair Work Act 2009. The dispute centred around changes to the agreement proposed by the employer, Infraworks, which the employee representatives, represented by the Construction, Forestry, Maritime, Mining and Energy Union, contested on behalf of their members.

The central legal issue before the Commission was whether the proposed variation to the Enterprise Agreement met the criteria for approval as outlined in section 176 of the Fair Work Act. This section stipulates that an agreement can be approved if it is in the public interest, ensures fairness, and meets the requirements of good faith bargaining. The dispute hinged on whether Infraworks had engaged in good faith bargaining and whether the proposed changes were fair and in the public interest. The Commission had to determine if the employer's actions were reasonable and whether the employees' objections were valid.

After reviewing the evidence and submissions from both parties, the Commission found that Infraworks had not engaged in good faith bargaining as required by the Act. The employer had failed to adequately consult with the employee representatives, leading to the employees' concerns not being properly addressed. Consequently, the Commission determined that the proposed variation did not meet the necessary criteria for approval. The Commission emphasised the importance of good faith bargaining in the context of enterprise agreements and noted that failure to adhere to this principle could result in the rejection of proposed variations. As a result, the application for approval of the variation was dismissed.

The Commission's final order was that the application for the variation of the Infraworks Construction Pty Ltd Enterprise Agreement Civil Works 2011-2013 be rejected. This decision underscored the necessity for employers to engage in good faith bargaining when proposing changes to enterprise agreements, ensuring that the interests of both parties are fairly considered.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established