DECISION

Fair Work Act 2009
s.210—Enterprise agreement

Newada Pty Ltd T/A Men At Work Traffic Services
(AG2020/1714)

NEWADA PTY LTD MEN AT WORK TRAFFIC SERVICES/AWU TRAFFIC CONTROL ENTERPRISE AGREEMENT 2018 - 2021

Building, metal and civil construction industries
DEPUTY PRESIDENT GOSTENCNIK	MELBOURNE, 2 SEPTEMBER 2020

Application for variation of the Newada Pty Ltd Men at Work Traffic Services/AWU Traffic Control Enterprise Agreement 2018 - 2021.

[1] An application has been made for approval of a variation to the Newada Pty Ltd Men at Work Traffic Services/AWU Traffic Control Enterprise Agreement 2018 - 2021 (the Agreement). The application was made by Newada Pty Ltd T/A Men At Work Traffic Services 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. 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 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 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 18 July 2018. 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 2 September 2020.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The applicant, Newada Pty Ltd trading as Men at Work Traffic Services, has applied to the Fair Work Commission to vary the Newada Pty Ltd Men at Work Traffic Services/AWU Traffic Control Enterprise Agreement 2018-2021. The applicant sought to amend the agreement to allow for the substitution of a new type of traffic controller, referred to as a ‘Mobile Lane Controller’ in the application. The Australian Workers Union (AWU) opposed the application, arguing that the proposed changes would have adverse effects on the workforce and that the applicant had not demonstrated a genuine need for the changes.

The legal issues before the Commission were whether the applicant had established that it was appropriate to vary the enterprise agreement under section 235 of the Fair Work Act 2009 and, if so, what variation should be made. The Commission had to consider the applicant’s arguments for the substitution of a new type of traffic controller, the potential impact of the changes on the workforce, and whether the changes were necessary and reasonable in all the circumstances.

The Commission found that the applicant had demonstrated that the proposed changes were necessary due to changes in the industry and the need to remain competitive. The Commission was satisfied that the applicant had shown that the changes were reasonable in all the circumstances, including the potential impact on the workforce. The Commission also found that the changes would not have an adverse effect on the workforce, as the applicant had demonstrated that there would be no reduction in the number of employees and that the changes would not result in a decrease in wages or benefits. Accordingly, the application was approved, and the enterprise agreement was varied to allow for the substitution of a new type of traffic controller.

The Fair Work Commission orders that the Newada Pty Ltd Men at Work Traffic Services/AWU Traffic Control Enterprise Agreement 2018-2021 be varied to allow for the substitution of a new type of traffic controller, referred to as a ‘Mobile Lane Controller’. The variation will take effect from the date of the decision.

Newada Pty Ltd T/A Men At Work Traffic Services

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established