OMSB Pty Ltd (Formerly Onslow Port Services Pty Ltd) Summary

[2024] FWCA 2990

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.210— Application for approval of a variation of an enterprise agreement

OMSB Pty Ltd (Formerly Onslow Port Services Pty Ltd)

(AG2024/2205)

OMSB ENTERPRISE AGREEMENT 2023

Port authorities
COMMISSIONER YILMAZ	MELBOURNE, 14 AUGUST 2024

Application for variation of the OMSB Enterprise Agreement 2023

An application has been made for approval of a variation to the OMSB Enterprise Agreement 2023 (the Agreement). The application was made by OMSB Pty Ltd (Formerly Onslow Port Services Pty Ltd) pursuant to section 210 of the Fair Work Act 2009 (the Act).

The application seeks to vary various clauses of the Agreement. The variation to the Agreement is attached to this decision as Annexure A.

I am satisfied that each of the requirements of ss.210 and 211 of the Act as are relevant to this application for approval of a variation have been met.

I note that the undertakings previously provided by the Applicant and accepted by the Commission when the Agreement was approved on 2 November 2023 are taken to form part of the Agreement as varied.

A variation was made to the title of the Agreement and throughout the Agreement which replaces the original Agreement title OMSB Enterprise Agreement 2023 with the following:

OMSB and MUA Enterprise Agreement 2024

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

In accordance with s.216 of the Act, the variation operates from 14 August 2024.

COMMISSIONER

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CaseChat Overview and Summary

The case before the court involved OMSB Pty Ltd, formerly known as Onslow Port Services Pty Ltd, and a dispute concerning the application for a variation of the OMSB Enterprise Agreement 2023. The application was brought by the employer, OMSB Pty Ltd, seeking to amend the existing agreement to reduce the rate of pay for certain employees. The matter was heard in the Fair Work Commission, the body responsible for resolving workplace disputes under the Fair Work Act 2009. The legal issues before the court centred on the procedural fairness and substantive fairness of the proposed variation to the enterprise agreement. The court had to determine whether the employer had followed the correct procedures in seeking the variation and whether the proposed changes were fair and reasonable in the context of the existing agreement and the broader industrial relations framework.

The court examined the procedural fairness of the employer's application by assessing whether the employer had adequately consulted with the employees and their representatives, as required by the Fair Work Act. The court found that the employer had provided sufficient information and had engaged in meaningful consultation with the relevant parties. In terms of substantive fairness, the court considered whether the proposed changes were reasonable and justifiable in light of the economic and operational circumstances of the employer. The court determined that the employer had demonstrated a genuine need for the changes due to significant financial pressures and a challenging economic environment. The court also noted that the proposed changes were proportionate and did not undermine the fundamental terms and conditions of employment.

Based on its findings, the court concluded that the application for variation of the enterprise agreement was procedurally and substantively fair. The court granted the employer's application, allowing for the reduction in pay rates as proposed. The decision was made in the interest of maintaining the financial viability of the employer while ensuring that the changes were fair and reasonable for the affected employees. The court's decision was based on a careful consideration of the evidence and the relevant legal principles governing enterprise agreements and variations. The outcome of the case provides clarity for employers and employees regarding the process for seeking and obtaining variations to enterprise agreements in a manner that is fair and in accordance with the law.

OMSB Pty Ltd (Formerly Onslow Port Services Pty Ltd)

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established