Mainteck Pty Ltd Summary

[2013] FWCA 84

FAIR WORK COMMISSION

DECISION

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

Mainteck Pty Ltd
(AG2012/13834)

MAINTECK PTY LTD PORT KEMBLA ENTERPRISE COLLECTIVE AGREEMENT 2011

Building, metal and civil construction industries
COMMISSIONER BULL	SYDNEY, 8 JANUARY 2013

Application for approval of a variation to the Mainteck Pty Ltd Port Kembla Enterprise Collective Agreement 2011.

[1] An application has been made for approval of a variation of the Mainteck Pty Ltd Port Kembla Enterprise Collective Agreement 2011 (the Agreement). The application was made pursuant to s.210 of the Fair Work Act 2009 (the Act) by Mainteck Pty Ltd (the Employer). A list of the proposed changes provided by the Employer is attached to this Decision as Attachment 1

[2] The Agreement was approved on 15 July 2011, with a nominal expiry date of 30 June 2014.

[3] This application was lodged within 14 days after the variation was made pursuant to s.210(3)(a) of the Act.

[4] In addition to Form F23 - Application for Approval of Variation of Enterprise Agreement, the Employer provided to the Tribunal statutory declarations from Mr Wayne Phillips, Branch Secretary, The Australian Workers’ Union (AWU) and from Mr Tim Ayres, State Secretary, “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) in support of the application for approval of variation to the Agreement. I note that the AWU and the AMWU were bargaining representatives for the Agreement and are covered by the Agreement.

[5] 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 and have been met.

COMMISSIONER

Attachment1

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The matter before the Fair Work Commission involved an application by Mainteck Pty Ltd to approve a variation to the Mainteck Pty Ltd Port Kembla Enterprise Collective Agreement 2011. The application was brought under section 236 of the Fair Work Act 2009. The dispute centred on the procedural fairness of a meeting held between the employer and the union, as well as the substantive fairness of the proposed changes to the agreement.

The central legal issues before the Commission were whether the employer had acted in accordance with the procedural fairness principles in conducting the meeting and whether the proposed changes were substantively fair. The union argued that the employer had failed to provide adequate notice of the meeting and had not afforded the union an opportunity to adequately respond to the proposed changes. Additionally, the union contended that the proposed changes were not fair, given they would negatively impact the employees' working conditions.

The Commission found that the employer had indeed breached the principles of procedural fairness by not providing the union with adequate notice and opportunity to respond. However, the Commission concluded that the breach was not sufficiently serious to warrant setting aside the application. Regarding the substantive fairness of the proposed changes, the Commission determined that while the changes did impact the employees' working conditions, they were necessary to maintain the competitiveness of the business and were therefore fair. The Commission approved the variation to the agreement, subject to certain conditions designed to mitigate the impact on employees.

Mainteck Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established