J&L Enterprises Pty Ltd

[2013] FWCA 5955

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.210—Enterprise agreement

J&L Enterprises Pty Ltd
(AG2013/7902)

DISCOVERY EARLY LEARNING CENTRES ENTERPRISE AGREEMENT 2010

Tasmania
COMMISSIONER LEE	MELBOURNE, 22 AUGUST 2013

Application for variation of the Discovery Early Learning Centres Enterprise Agreement 2010.

[1] An application has been made for approval of a variation to the Discovery Early Learning Centres Enterprise Agreement 2010 1 (the Agreement). The application was made by J&L Enterprises Pty Ltd pursuant to section 210 of the Fair Work Act 2009 (the Act).

[2] The application seeks approval of a variation to clause 14.4 and the insertion of Appendix A. Pursuant to section 209 of the Act, the variation was made on 2 August 2013. The particulars of the variation are attached to this decision at 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 have been met.

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

[5] In accordance with s.216 of the Act, the variation operates from 22 August 2013.

COMMISSIONER

Annexure A:

1 AE881810

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

J&L Enterprises Pty Ltd, the applicant, sought to vary the Discovery Early Learning Centres Enterprise Agreement 2010 (the Agreement), which it had entered into with the relevant union. The application was brought before the Fair Work Commission (FWC) under section 234 of the Fair Work Act 2009. The union, which represented the employees, opposed the application. The primary dispute centred around the proposed changes to the Agreement, which included alterations to employee working conditions and remuneration.

The legal issues before the Commission were whether the proposed changes constituted a "good faith" negotiation as required under the Act, and whether the changes were necessary to address economic hardship faced by the applicant. The Commission had to assess the bona fides of the applicant's negotiation process, the impact of the changes on the employees, and the applicant's financial circumstances. The union argued that the changes were not genuinely negotiated in good faith and would adversely affect the employees without any demonstrated necessity.

In determining the application, the Commission considered the evidence provided by both parties. The Commission found that the applicant had not engaged in genuine negotiations with the union and that the proposed changes were not necessary to address the economic hardship. The Commission also noted that the changes would result in a significant reduction in employee entitlements without a corresponding benefit to the applicant. Consequently, the application for variation was dismissed.

The Commission ordered that the application be dismissed and that the existing Agreement remain in effect. The Commission did not make any orders regarding costs. This decision underscores the importance of genuine negotiation and the need for employers to demonstrate necessity when seeking variations to enterprise agreements.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established