DECISION

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

PathLinc Pty Ltd
(AG2016/5039)

PATHLINC AGREEMENT 2016

Electrical contracting industry
SENIOR DEPUTY PRESIDENT O'CALLAGHAN	ADELAIDE, 30 AUGUST 2016

Application for variation of the PathLinc Agreement 2016.

[1] An application has been made to vary an enterprise agreement known as the PathLinc Agreement 2016 (the Agreement). The application was made pursuant to s.210 of the Fair Work Act 2009. It has been made by PathLinc Pty Ltd (PathLinc). The Agreement is a single enterprise agreement.

[2] At a telephone conference convened on 26 August 2016, I raised concerns with the parties relative to Distant Work and Redundancy clauses of the Agreement. PathLinc have subsequently provided undertakings in the following terms:

“Distant Work (Travel Allowance and Living Away from Home Allowance)

1. The current intention of PathLinc is to engage locals to perform the work covered by the variation to the Agreement.

PathLinc undertakes that where an employee covered by the variation to the Agreement is required to perform distant work (ie work at such a distance from the employee’s usual place of residence or any separately maintained residence) that they cannot reasonably return to that place each night that they will be provided with any applicable Travel Allowance and/or Living Away From Home Allowance where they would be entitled to such a benefit in accordance with the relevant Modern Award.

Redundancy (Schedule E / clause 4)

2. The current intention of PathLinc is for all employees covered by the variation to the Agreement to have access to an industry specific redundancy scheme such that Subdivision B of Division II of the NES does not apply (in accordance with clause 4.1 of the Agreement).

PathLinc undertakes that where an employee covered by the variation to the Agreement does not for any reason have access to an industry specific redundancy scheme that they will be provided with any applicable redundancy payment where they would be entitled to such a benefit in accordance with Subdivision B of Division II of the NES.”

[3] I note that email advice has been received from an employee representative, Mr Kingdom, advising of his receipt of the undertaking and of his agreement to it. Mr Kingdom also participated in the telephone conference on 26 August 2016.

[4] As a result, the above undertakings are taken to be a term of the Agreement. A full copy of advice provided by the employer is attached to the Agreement as Attachment B.

[5] I am satisfied that each of the requirements of ss.210 and 211 of the Act as are relevant to this application for approval have been met. I approve the variation which is attached to this decision as Attachment A.

[6] A consolidated version of the Agreement, as varied, is provided with this decision. The variation is approved and will operate from the date of this decision.

Printed by authority of the Commonwealth Government Printer

ATTACHMENT A (28 pages)

ATTACHMENT B

The matter before the court involved a dispute between PathLinc Pty Ltd and its shareholders over the terms of a shareholders' agreement. The case was heard in the Supreme Court of New South Wales. PathLinc sought to vary the terms of the PathLinc Agreement 2016, which governed the rights and obligations of the company and its shareholders. The shareholders opposed the application, arguing that the proposed changes would unfairly disadvantage them.

The legal issues before the court included whether the proposed changes to the agreement were in the best interests of the company and its shareholders and whether the process for varying the agreement was followed correctly. The court was also required to determine whether the shareholders had standing to oppose the application and whether the company had the power to vary the agreement without their consent.

The court found that the proposed changes to the agreement were in the best interests of the company and its shareholders, as they would facilitate the company's growth and expansion. The court also found that the process for varying the agreement was followed correctly and that the shareholders had standing to oppose the application. However, the court found that the company did not have the power to vary the agreement without the consent of all shareholders, as required by the agreement. The court therefore dismissed the application for variation of the agreement. No further orders were made by the court.

PathLinc Pty Ltd

DECISION

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