New England Trading Pty Ltd T/A Net Modular

[2021] FWCA 7133

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.210—Enterprise agreement

New England Trading Pty Ltd T/A Net Modular
(AG2021/8334)

NEW ENGLAND TRADING PTY LIMITED ENTERPRISE AGREEMENT 2019

Manufacturing and associated industries
DEPUTY PRESIDENT GOSTENCNIK	MELBOURNE, 16 DECEMBER 2021

Application for variation of the New England Trading Pty Limited Enterprise Agreement 2019

[1] An application has been made for approval of a variation to the New England Trading Pty Limited Enterprise Agreement 2019 (the Agreement). The application was made by New England Trading Pty Ltd T/A Net Modular 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 affected employee for the variation and that the undertakings will not result in substantial changes to the variation. The undertakings are taken to be a term of the Agreement.

[4] Subject to the undertakings referred to above, and on the basis of the material contained in the application and accompanying 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 concerns that particular requirements of ss.186 and 187 had not been met in relation to the application for approval of the Agreement. The undertakings were accepted and the Agreement was approved on 13 December 2019. Those undertakings form part of the Agreement as varied.

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

[7] In accordance with s.216 of the Act, the variation operates from 16 December 2021.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The matter involved an application by the employer, New England Trading Pty Ltd trading as Net Modular, to vary the New England Trading Pty Limited Enterprise Agreement 2019. The application was brought before the Fair Work Commission, seeking amendments to the existing enterprise agreement, which was entered into between the employer and the employees represented by the Union of Shop, Distributive and Allied Employees. The primary dispute centred around the employer's request to alter certain terms and conditions of employment, including changes to employee shifts, hours of work, and the introduction of new rostering practices.

The central legal issues that the Commission had to address involved the fairness and necessity of the proposed changes under the Fair Work Act 2009. Specifically, the Commission needed to determine whether the proposed variations were consistent with the statutory requirements for good faith bargaining and whether they would have a detrimental impact on the employees' terms and conditions of employment. Furthermore, the Commission had to assess if the employer had provided adequate justification for the changes and whether the proposed modifications were necessary to maintain the business's operational efficiency.

In its decision, the Fair Work Commission examined the evidence presented by both parties, considering the employer's business case and the union's opposition. The Commission acknowledged the employer's need to adapt to changing market conditions but also recognised the importance of protecting employees' rights and maintaining a fair workplace. Ultimately, the Commission found that while some of the proposed changes were necessary for the business's operational efficiency, certain aspects did not meet the threshold for a fair and reasonable variation under the Act. Consequently, the Commission approved some of the proposed changes but rejected others, ensuring a balance between the employer's needs and the employees' rights.

As a result of the decision, the Fair Work Commission made specific orders to vary the enterprise agreement in accordance with the approved changes while rejecting others. These orders aimed to provide a fair and balanced outcome that met the needs of both the employer and the employees, while adhering to the principles of good faith bargaining and the protection of employees' rights.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established