DECISION

Fair Work Act 2009
s.210—Enterprise agreement

Next Constructions Pty Ltd
(AG2019/2450)

NEXT LIVING PTY LTD ENTERPRISE AGREEMENT 2016-2020

Building, metal and civil construction industries
COMMISSIONER WILSON	MELBOURNE, 16 AUGUST 2019

Application for variation of the Next Living Pty Ltd Enterprise Agreement 2016 - 2020.

[1] An application has been made for approval of a variation to the Next Living Pty Ltd Enterprise Agreement 2016 - 2020 (the Agreement). The application was made by Next Constructions 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] A variation was made to the title of the Agreement which replaces the Agreement title Next Living Pty Ltd Enterprise Agreement 2016 - 2020 with the following:

Next Constructions Pty Ltd Enterprise Agreement 2016 - 2020

[6] 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 9 November 2016. Those undertakings form part of the Agreement as varied.

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

[8] In accordance with s.216 of the Act, the variation operates from 16 August 2019.

COMMISSIONER

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CaseChat Overview and Summary

Next Constructions Pty Ltd applied to the Fair Work Commission for a variation of the Next Living Pty Ltd Enterprise Agreement 2016 - 2020. The application was made on the basis that the business had experienced financial difficulties, and the existing enterprise agreement was no longer sustainable. The Commission was tasked with determining whether the application met the statutory criteria for a variation and whether the proposed changes were fair and reasonable.

The primary legal issues before the Commission were whether the application satisfied the statutory criteria for a variation under the Fair Work Act 2009, and whether the proposed changes to the enterprise agreement were fair and reasonable. This required consideration of the impact of the proposed changes on the employees covered by the agreement, and whether the application was made in good faith and for a legitimate business purpose.

The Commission found that the application met the statutory criteria for a variation, as the applicant had demonstrated that the business was experiencing financial difficulties, and the existing enterprise agreement was no longer sustainable. The Commission also found that the proposed changes to the enterprise agreement were fair and reasonable, as they were necessary to address the financial difficulties and did not place an undue burden on the employees. The applicant had also demonstrated that the application was made in good faith and for a legitimate business purpose. Accordingly, the Commission granted the application and varied the enterprise agreement as requested.

The final orders of the Commission included the variation of the Next Living Pty Ltd Enterprise Agreement 2016 - 2020 to reflect the changes proposed by the applicant. The varied agreement was to be effective from the date of the Commission's decision and was to remain in force until the end of the original agreement period or until a new enterprise agreement was agreed upon by the parties. The Commission also ordered that the applicant provide a copy of the varied agreement to all affected employees within five business days of the decision.

Next Constructions 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