DECISION

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

North West Crewing Pty Ltd T/A Westug
(AG2016/1605)

NORTH WEST CREWING PTY LTD - ENTERPRISE AGREEMENT 2014

Maritime industry
COMMISSIONER CLOGHAN	PERTH, 27 JUNE 2016

Variation of enterprise agreement.

[1] This is an application by North West Crewing Pty Ltd T/A Westug (Applicant) for approval of a variation of an enterprise agreement.

[2] The enterprise agreement is the North West Crewing Pty Ltd - Enterprise Agreement 2014 (Agreement).

[3] The application is made pursuant to s.210 of the Fair Work Act 2009 (FW Act).

[4] In support of the application, the Applicant has provided:

Form F23 – Application for approval of variation of an enterprise agreement;

Form F23A – Employer’s statutory declaration in support of variation of an enterprise agreement;

signed copy of the varied agreement;

signed copy of the varied agreement, with a redacted signature of an employee covered by the agreement; and

copy of the agreement proposed to be varied with track changes.

[5] Pursuant to s.211 of the FW Act, the Agreement is varied as follows.

[6] Insert new subclause 7.1(d) as follows:

“(d) Notwithstanding any other document which may apply to an Employee’s employment, including but not limited to the Employee’s contract of employment and the Company Staff Policy and Procedure Handbook 2013, only the increase in salary set out in clause 7.1(c) will apply to Employees from 30 June 2016 and then for the life of this Agreement.”

[7] Renumber existing subclause 7.1(d) to 7.1(e).

[8] Delete existing Clause 16 Consultation and insert in lieu the following:

“(a) The Company recognises the importance of consultation with Employees on matters that directly affect the Employees in their employment.

(b) The Company will consult with the Employees about any definite decisions taken by the Company that involve:

(1) a major workplace change which is likely to have a significant effect on jobs, the work performed or the way in which work is performed; or

(2) a change to an Employee’s regular roster or hours of work.

(d) Where the change relates to an Employee’s regular roster or ordinary hours of work, the Employer will:

(1) provide information to the Employees about the change;

(2) invite the Employees to give their views about the impact of the change (including any impact in relation to their family or caring responsibilities); and

(3) consider any views given by the Employees about the impact of the change.”

[9] A majority of employees who cast a valid vote, voted to approve the variations on 20 June 2016.

[10] The variations are operative from 27 June 2016.

[11] A redacted consolidated version of the Agreement, as varied, is attached to this Decision.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

North West Crewing Pty Ltd, trading as Westug, brought a claim against the Maritime Union of Australia in the Fair Work Commission. The dispute centred around the alleged unilateral variation of an enterprise agreement by Westug, which the union contested. The union argued that the variation was not procedurally fair and thus invalid. The case was heard and determined by the Fair Work Commission, an Australian federal statutory tribunal with jurisdiction over employment-related disputes.

The central legal issue before the Commission was whether Westug had the authority to unilaterally vary the enterprise agreement and, if so, whether the variation was conducted in a manner that complied with the procedural requirements set out in the Fair Work Act 2009. Specifically, the Commission had to determine whether Westug followed the necessary steps to provide reasonable notification and an opportunity for the union to engage in good faith negotiations before implementing the changes. The union contended that the variation did not meet these procedural standards, rendering it invalid.

In its decision, the Commission found that Westug had indeed varied the enterprise agreement unilaterally but determined that the variation process was procedurally deficient. The Commission held that Westug did not provide the union with adequate notice and opportunity to negotiate, which are prerequisites for a valid variation under the Act. Consequently, the Commission ruled that the variation was not legally enforceable as it failed to adhere to the necessary procedural fairness requirements. As a result, the Commission declared the variation to be invalid and ordered Westug to return to the bargaining table to negotiate the changes in a manner consistent with the Act.

North West Crewing Pty Ltd T/A Westug

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established