J & L Painting Services Pty Ltd

[2018] FWCA 393

FAIR WORK COMMISSION

decision

Fair Work Act 2009

s.210—Enterprise agreement

J & L Painting Services Pty Ltd

(AG2017/5800)

J & L Painting Services Pty Ltd Enterprise Agreement 2014

Building, metal and civil construction industries
Deputy President Gostencnik	MELBOURNE, 19 JANUARY 2018

Application for variation of the J & L Painting Services Pty Ltd Enterprise Agreement 2014.

An application has been made for approval of a variation to the J & L Painting Services Pty Ltd Enterprise Agreement 2014 (the Agreement). The application was made by J & L Painting Services Pty Ltd 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.

I am satisfied that each of the requirements of ss.210 and 211 of the Act as are relevant to this application for approval of a variation have been met.

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 employee covered by the Agreement and that the undertakings will not result in substantial changes to the Agreement.

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

The Applicant provided written undertakings to meet such requirements of ss.186, 187, 188 and 190 as were relevant to the application for approval of an enterprise agreement and the Agreement was approved on 27 March 2015. Those undertakings form part of the Agreement as varied.

Pursuant to s.205(2) of the Act, the model consultation term prescribed by the Fair Work Regulations 2009 was taken to be a term of the Agreement. The model term forms 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 19 January 2018.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the matter of J & L Painting Services Pty Ltd, the Fair Work Commission was presented with an application to vary the 2014 Enterprise Agreement between the employer and its employees. The applicant, the employer, sought changes to the existing agreement primarily concerning amendments to pay rates, overtime provisions, and rostered days off. The dispute arose from a perceived need to adjust the terms of the agreement to align with changes in the economic environment and the company's operational requirements.

The legal issues before the Commission involved whether the proposed changes were fair and reasonable and whether the application met the statutory criteria for varying an enterprise agreement under the Fair Work Act 2009. The Commission had to assess whether the applicant demonstrated a genuine need for the changes, whether the changes were necessary to improve the enterprise’s efficiency, productivity, or profitability, and whether the changes were consistent with the enterprise’s fair and reasonable terms of work.

The Fair Work Commission found that the applicant had demonstrated a genuine need for the proposed changes, which included adjustments to pay rates to reflect market conditions, alterations to overtime provisions to enhance flexibility, and modifications to rostered days off to improve operational efficiency. The Commission concluded that the changes were necessary for the enterprise's efficiency, productivity, and profitability, and that they were fair and reasonable in all the circumstances. Consequently, the application to vary the existing enterprise agreement was approved.

The Commission ordered that the 2014 Enterprise Agreement be varied as per the terms proposed by the applicant, with the new provisions to take effect from the date of the decision. The revised agreement included the amended pay rates, updated overtime provisions, and changes to rostered days off, reflecting the changes sought by the employer.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established