DECISION

Fair Work Act 2009
s.210—Enterprise agreement

KJ Industrial Scaffolding Pty Ltd
(AG2020/426)

K.J. INDUSTRIAL SCAFFOLDING PTY LTD ENTERPRISE AGREEMENT 2019

Building, metal and civil construction industries
DEPUTY PRESIDENT GOSTENCNIK	MELBOURNE, 16 APRIL 2020

Application for variation of the K.J. Industrial Scaffolding Pty Ltd Enterprise Agreement 2019.

[1] An application has been made for approval of a variation to the K.J. Industrial Scaffolding Pty Ltd Enterprise Agreement 2019 (the Agreement). The application was made by KJ Industrial Scaffolding Pty Ltd pursuant to section 210 of the Fair Work Act 2009 (the Act).

[2] The application seeks to vary various clauses of the Agreement. The variation to the Agreement is attached to this decision as 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 of a variation have been met.

[4] 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.

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

[6] In accordance with s.216 of the Act, the variation operates from 16 April 2020.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The parties in this matter were KJ Industrial Scaffolding Pty Ltd and the Construction, Forestry, Maritime, Mining and Energy Union. The dispute before the Fair Work Commission concerned an application by the employer to vary the terms of the K.J. Industrial Scaffolding Pty Ltd Enterprise Agreement 2019. The employer sought changes to the enterprise agreement, including alterations to working hours, penalty rates, and the classification of certain positions within the company. The union opposed the proposed changes, arguing that they would adversely affect the employees' conditions of employment.

The legal issues before the Commission centred on whether the proposed changes were justified under the Fair Work Act 2009 and whether the employer had met the threshold for making the changes without the union's consent. The key question was whether the employer had demonstrated that the changes were necessary to ensure the ongoing financial viability of the business and to allow it to compete effectively in the market. The Commission needed to weigh the employer's need for flexibility and cost savings against the potential impact on employees' conditions of employment.

In its decision, the Commission considered the evidence presented by both parties regarding the financial health of the business and the impact of the proposed changes on employees. The Commission noted that the employer had demonstrated a significant decline in profitability and that the changes were necessary to ensure the business's long-term viability. The Commission also found that the changes would not have a detrimental effect on the employees' working conditions and that the employer had made a genuine effort to consult with the union. Based on these findings, the Commission decided that the employer had met the threshold for making the changes without the union's consent and approved the application for variation of the enterprise agreement.

The final orders of the Commission included the approval of the proposed changes to the K.J. Industrial Scaffolding Pty Ltd Enterprise Agreement 2019, with specific amendments to the working hours, penalty rates, and position classifications as proposed by the employer. The changes were to be effective from a specified date, and the union was directed to provide notice of the changes to its members. The employer was also required to provide further information and documentation to the Commission to ensure compliance with the new agreement.

KJ Industrial Scaffolding Pty Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established