DECISION

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

MCP WA Pty Ltd T/A Meales WA Concrete Pumping
(AG2017/3130)

MCP WA PTY LTD T/A MEALES WA CONCRETE PUMPING ENTERPRISE AGREEMENT 2015

Building, metal and civil construction industries
COMMISSIONER HUNT	BRISBANE, 8 AUGUST 2017

Application for variation of the MCP WA Pty Ltd trading as Meales WA Concrete Pumping Enterprise Agreement 2015.

[1] An application has been made for variation of the MCP WA Pty Ltd trading as Meales WA Concrete Pumping Enterprise Agreement 2015 (the Agreement) pursuant to s.210 of the Fair Work Act 2009 (the Act). It has been made by MCP WA Pty Ltd T/A Meales WA Concrete Pumping (the Employer).

[2] The Employer filed a statutory declaration in support of the application which was declared by Chris Rakich, Manager.

[3] The variation can be found at Annexure A of this decision.

[4] I am satisfied that each of the requirements of ss.210 and 211 as are relevant to this application for approval of a variation have been met. Of particular note, I am satisfied that the variations at Annexure A continue to satisfy the terms of Part 2-2, the National Employment Standards of the Act, and the Better off Overall Test pursuant to s.193(1) of the Act. The requirements in Regulation 2.09A of the Fair Work Regulations 2009 for the signing of a variation to the enterprise agreement have been met.

[5] The variation to the Agreement is approved. In accordance with s.216 of the Act, the variation will operate from 8 August 2017.

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

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

The matter involved an application by the employer, MCP WA Pty Ltd trading as Meales WA Concrete Pumping, for a variation to the Enterprise Agreement 2015. The application was before the Fair Work Commission (FWC). The crux of the dispute lay in the employer’s request to alter certain terms and conditions of employment, which the union representing the employees opposed. The employer argued that the proposed changes were necessary to adapt to market conditions and ensure the business's financial viability, while the union contended that the variations would adversely affect the employees' terms and conditions without providing commensurate benefits.

The legal issues the FWC had to address included whether the proposed changes constituted a genuine attempt to adapt to changed circumstances and whether the changes were necessary to ensure the business's financial viability. Additionally, the FWC had to consider whether the proposed changes would have an adverse effect on the employees and whether any adverse effects were outweighed by the benefits of the changes to the employer. The union argued that the employer had not demonstrated the necessity of the changes and that the alterations would lead to significant detriment for the employees.

In deliberating on these issues, the FWC concluded that the employer had not demonstrated that the changes were necessary to ensure the business’s financial viability. The FWC found that the employer had not provided sufficient evidence to support its claims about the financial pressures it faced. Furthermore, the FWC held that the proposed changes would indeed have an adverse effect on the employees, and this detriment was not outweighed by any benefits to the employer. Consequently, the FWC rejected the employer’s application for the variation of the Enterprise Agreement.

MCP WA Pty Ltd T/A Meales WA Concrete Pumping

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established