DECISION

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

More Than OK Building Pty Ltd
(AG2015/3293)

MORE THAN OK BUILDING PTY. LTD ENTERPRISE AGREEMENT 2014 - 2018

Building, metal and civil construction industries
SENIOR DEPUTY PRESIDENT DRAKE	SYDNEY, 12 AUGUST 2015

Application for variation of the More Than OK Building Pty. Ltd Enterprise Agreement 2014 - 2018.

A. An application has been made for approval of a variation of the More Than OK Building Pty Ltd Enterprise Agreement 2014 – 2018. The application was made pursuant to s.210 of the Fair work Act 2009 (the Act) by More Than OK Building Pty Ltd.

B. The agreement shall be varied as follows:

1. By inserting a new clause 5.6 Over-Agreement Payments as follows:

5.6 Over-Agreement Payments

5.6.1. The Company may enter into an arrangement with an Employee to pay that Employee remuneration in excess of that provided in Appendix 2 of this Agreement. Additional remuneration may be paid by way of a higher rate than the rate specified for the Employee’s classification in the relevant Table in Appendix 2 of this Agreement.

5.6.2 Where remuneration is paid by way of a higher hourly rate, the new rate shall become the hourly rate for all purposes of this Agreement, including for the calculation of long service payments by the Long Service Corporation.

5.6.3 An hourly rate in excess of the wage rates set out in the relevant Table in Appendix 2 of this Agreement may be subject to review based on Employee performance, project progress, or other criterion. Payment of the amount of the higher hourly rate may be discontinued in circumstances where an Employee’s performance is assessed as unsatisfactory. Alternatively, the amount of excess may be offset against any later increases in the hourly rates prescribed in the relevant Table in Appendix 2 of this Agreement.

C. The variation to the Agreement is approved and will operate from the date of this decision.

D. A consolidated version of the Agreement, as varied, is attached to this decision.

SENIOR DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the Fair Work Commission, the applicant, More Than OK Building Pty Ltd, sought a variation to the More Than OK Building Pty Ltd Enterprise Agreement 2014 - 2018. The applicant, a small business, argued that the current agreement placed an undue financial burden on the company, and it required changes to remain competitive and viable. The dispute centred on the applicant's request for amendments to various provisions related to wages, hours of work, and conditions of employment for the employees covered by the agreement.

The legal issues before the court were whether the proposed variations were reasonable and necessary to ensure the continued financial viability of the applicant, and if the changes were consistent with the principles of the Fair Work Act 2009. The court had to determine whether the applicant had demonstrated that the variations were necessary to maintain the business's financial sustainability, and whether the changes would have a detrimental effect on the employees' conditions.

The Fair Work Commission considered the evidence presented by both parties and assessed the impact of the proposed changes on the applicant's financial viability and the employees' conditions. The court found that the applicant had demonstrated that the variations were necessary for the business to remain competitive and viable, and that the changes would not have an adverse effect on the employees' conditions. The court accepted that the proposed changes were reasonable and in line with the principles of the Fair Work Act 2009. Consequently, the court approved the application for variation of the enterprise agreement.

The final orders of the court granted the applicant's request for variations to the More Than OK Building Pty Ltd Enterprise Agreement 2014 - 2018, as outlined in the application. The changes came into effect from the date of the decision and were to be applied to the employees covered by the agreement. The court emphasised the importance of maintaining a balance between the need for businesses to remain competitive and viable, and the protection of employees' rights and conditions under the Fair Work Act 2009.

More Than OK Building 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