Kazac Civil Pty Ltd Summary

[2023] FWCA 1641

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.210—Enterprise agreement

Kazac Civil Pty Ltd

(AG2023/920)

KAZAC CIVIL PTY LTD ENTERPRISE AGREEMENT 2017 - 2020

Building, metal and civil construction industries
DEPUTY PRESIDENT MASSON	MELBOURNE, 7 JUNE 2023

Application for variation of the Kazac Civil Pty Ltd Enterprise Agreement 2017 - 2020

An application has been made for approval of a variation to the Kazac Civil Pty Ltd Enterprise Agreement 2017 - 2020 (the Agreement). The application was made by Kazac Civil 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.

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.

The Form F23A and supporting material provided indicate that Employees were notified of the time, place and method of vote on the date that voting commenced, rather than 7 days prior to the commencement of voting as required by s. 180(3) of the Act. However, I am satisfied that in all of the circumstances and having regard to the Full Bench decision in Huntsman Chemical Company Australia Pty Limited T/A RMAX Rigid Cellular Plastics & Others[1], this constitutes a minor procedural or technical error for the purpose of s.188(2)(a). Further, I am satisfied that the employees covered by the Agreement were not likely to be disadvantaged by the error.

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.

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 9 November 2017. 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 7 June 2023.

DEPUTY PRESIDENT

[1] [2019] FWCFB 318.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Kazac Civil Pty Ltd, an employer, applied to the Fair Work Commission to vary the terms of the Enterprise Agreement between itself and its employees. The employees, represented by their union, opposed the application. The legal issues centred around whether the proposed changes to the agreement were necessary to address economic hardship and whether the changes were fair and reasonable. The Fair Work Commission examined the economic circumstances of the employer, the impact of the proposed changes on the employees, and whether the changes were necessary and proportionate.

The Commission noted the economic difficulties faced by Kazac Civil, which included significant financial losses due to the COVID-19 pandemic. It also considered the potential impact on employees, including possible job losses and reduced wages. In determining whether the changes were necessary, the Commission assessed whether the employer had taken all reasonable steps to avoid making the changes and whether the changes would allow the employer to return to financial viability. The Commission concluded that the proposed changes were necessary to address the employer's economic hardship and that the changes were fair and reasonable given the circumstances.

The Commission ordered that the Enterprise Agreement be varied as proposed by Kazac Civil. The changes included reduced wages and working hours for certain employees, subject to specific conditions and protections. The decision highlights the Commission's approach to balancing the needs of employers facing economic hardship with the rights and interests of employees.

Kazac Civil Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established