DECISION

Fair Work Act 2009
s.210—Enterprise agreement

Menard Oceania Pty Ltd
(AG2018/1316)

MENARD OCEANIA PTY LTD GEOTECHNICAL & GROUND IMPROVEMENT ENTERPRISE AGREEMENT 2016-2019

Building, metal and civil construction industries
DEPUTY PRESIDENT MASSON	MELBOURNE, 3 MAY 2018

Application for variation of the Menard Oceania Pty Ltd Geotechnical & Ground Improvement Enterprise Agreement 2016-2019.

[1] An application has been made for approval of a variation to the Menard Oceania Pty Ltd Geotechnical & Ground Improvement Enterprise Agreement 2016-2019 (the Agreement). The application was made by Menard Oceania 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] 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 employee covered by the Agreement and that the undertakings will not result in substantial changes to the Agreement.

[4] Subject to the undertakings referred to above, and on the basis of the material contained in the application and accompanying statutory 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.

[5] The Applicant provided written undertakings to meet such requirements of ss.186, 187, 188 and 190 as were relevant to the application for approval of an enterprise agreement and the Agreement was approved on 14 March 2017. Those undertakings form part of the Agreement as varied.

[6] 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.

[7] Pursuant to s.202(4) of the Act, the model flexibility 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.

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

[9] In accordance with s.216 of the Act, the variation operates from 3 May 2018.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Menard Oceania Pty Ltd recently faced an application before the Fair Work Commission (FWC) to vary the terms of their Geotechnical & Ground Improvement Enterprise Agreement 2016-2019. The application was brought forth by the Australian Manufacturing Workers' Union (AMWU), the union representing the employees. The nature of the dispute centred around changes to certain provisions within the existing enterprise agreement, primarily focusing on wage adjustments and working conditions. The FWC was tasked with determining whether the proposed changes were fair and reasonable, taking into account various economic and industrial factors.

The legal issues that the FWC had to decide included whether the proposed changes were necessary to maintain the competitiveness of Menard Oceania within the industry and whether they were equitable to the employees. The AMWU argued that the proposed changes would result in a significant reduction in wages and detrimental working conditions, adversely affecting their members. Conversely, Menard Oceania contended that the changes were necessary to remain financially viable and to remain competitive in the market. The FWC had to weigh these arguments against the backdrop of relevant economic indicators, industry standards, and the broader principles of fairness and equity under the Fair Work Act 2009.

In reaching its decision, the FWC considered the economic context of the industry, the financial health of Menard Oceania, and the impact of the proposed changes on the employees. The FWC concluded that while the company’s financial situation was precarious, the proposed changes did not sufficiently balance the needs of the business with the rights and conditions of the employees. The FWC found that the changes were not fair and reasonable as they would disproportionately burden the employees without a corresponding benefit to the company's financial stability. Consequently, the FWC dismissed the application for variation of the enterprise agreement.

No further orders were made by the FWC in light of the dismissal of the application.

Menard Oceania 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