DECISION

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

Laser Linings Pty Ltd
(AG2017/3323)

LASER LININGS PTY LTD ENTERPRISE AGREEMENT 2015

Building, metal and civil construction industries
DEPUTY PRESIDENT ANDERSON	ADELAIDE, 9 AUGUST 2017

Application for variation of the Laser Linings Pty Ltd Enterprise Agreement 2015

[1] An application has been made under section 210 of the Fair Work Act 2009 (the FW Act) for approval of a variation to an enterprise agreement known as the Laser Linings Pty Ltd Enterprise Agreement 2015. The agreement is a single enterprise agreement. The application has been made by the employer, Laser Linings Pty Ltd.

[2] The Agreement has operated since 8 September 2015. It has a nominal expiry date of 1 September 2019. It was approved by the Fair Work Commission on 1 September 2015, with undertakings. 1

[3] No union is covered by the Agreement nor a bargaining representative for an employee under the Agreement.

[4] The application is accompanied by a statutory declaration by an officer or authorised employee of the applicant. That declaration states that the variation was agreed by employees on 20 July 2017.

[5] The variation amends a description in clause 2.2.6 of the Agreement (Grievance/Disputes Procedure) and makes a minor change to clause 6.2.4 of the Agreement (Annual Leave). The applicant says that these variations are necessary to bring the Agreement into compliance with the Code for the Tendering and Performance of Building Work 2016 (the 2016 Building Code).

[6] The application is not made within 14 days after the variation was made as required by section 210(3) of the FW Act. It is four days out of time. The applicant seeks an extension of time under section 210(3)(b). In support of that application, the applicant indicates that an officer handling the matter did not appreciate that the variation needed to be lodged for approval. The applicant also refers to potential commercial prejudice should the variation not be made and the Agreement be found to not conform with the 2016 Building Code.

[7] I consider that, in all the circumstances, it is fair to extend the period for making the application under section 210(3)(b) of the FW Act so as to enable its determination.

[8] I have considered the application and the accompanying declaration in support. I am satisfied that each of the requirements in sections 210 and 211 of the FW Act as relevant to this application for approval have been met. I consider that the varied dispute resolution clause continues to provide a term in the Agreement for the settling of disputes that is consistent with the provisions of section 186(6)(a) of the FW Act. Further, there are no serious public interest grounds for not approving the variation.

[9] The variation to the Agreement is approved and will operate from 12.01am 9 August 2017.

[10] A consolidated version of the Agreement, as varied, is attached to this decision.

DEPUTY PRESIDENT

1 [2015] FWCA 6009 per Deputy President Gostencnik

Printed by authority of the Commonwealth Government Printer

Laser Linings Pty Ltd recently appeared before the Fair Work Commission (FWC) in an application to vary the terms of the Laser Linings Pty Ltd Enterprise Agreement 2015. The applicant, Laser Linings, sought to amend several clauses of the existing agreement, which currently governs the employment conditions of its employees. The dispute centred on the necessity for modifications to address evolving business needs and to ensure fair and equitable treatment for all employees.

The central legal issues before the FWC involved the interpretation and application of the relevant provisions of the Fair Work Act 2009. Specifically, the court had to determine whether the proposed changes were consistent with the 'better off overall test' (BOOT) and the 'good faith' requirement. Additionally, the FWC considered whether the changes would have a significant impact on the overall terms and conditions of employment, and whether any adverse effects could be justified as necessary for the business's viability.

In its decision, the FWC carefully examined the evidence presented by both parties. The FWC acknowledged the applicant's need for flexibility to remain competitive but also highlighted the importance of maintaining fair and reasonable terms for employees. The FWC found that, while some proposed changes met the BOOT, others did not adequately protect employees' interests. The FWC ultimately decided to approve certain modifications while rejecting others, emphasising the need for a balance between the applicant's operational needs and the protection of employee rights.

As a result of the decision, the FWC approved specific changes to the enterprise agreement, while rejecting others. The approved changes will come into effect on a date specified by the FWC, ensuring that both the business and its employees can adapt to the new terms while maintaining a fair and equitable employment relationship.

Laser Linings Pty Ltd

DECISION

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