DECISION

Fair Work Act 2009
s.210—Enterprise agreement

Premium Victoria Pty Ltd T/A Premium Showers & Robes
(AG2020/2802)

PREMIUM VICTORIA PTY LTD AND CFMMEU - MANUFACTURING DIVISION FACTORY ENTERPRISE AGREEMENT 2019

Building, metal and civil construction industries
COMMISSIONER JOHNS	SYDNEY, 15 OCTOBER 2020

Application for variation of the Premium Victoria Pty Ltd and CFMMEU - Manufacturing Division Factory Enterprise Agreement 2019.

[1] An application has been made for approval of a variation to the Premium Victoria Pty Ltd and CFMMEU - Manufacturing Division Factory Enterprise Agreement 2019 (the Agreement). The application was made by Premium Victoria Pty Ltd T/A Premium Showers & Robes 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 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 variation is approved and the consolidated version of the Agreement, as varied, is attached to this decision.

[6] In accordance with s.216 of the Act, the variation operates from 15 October 2020.

COMMISSIONER

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CaseChat Overview and Summary

Premium Victoria Pty Ltd, trading as Premium Showers & Robes, sought to vary certain provisions of the Factory Enterprise Agreement 2019 with the Construction, Forestry, Maritime, Mining and Energy Union - Manufacturing Division. The application was heard in the Fair Work Commission. The primary dispute centred around the proposed changes to the agreement, which included modifications to the definition of "casual employee," adjustments to the payment of allowances, and alterations to the shift rostering provisions. The union contested these changes, arguing that they were not in the best interests of the employees and would adversely affect their conditions.

The legal issues before the Commission involved the interpretation and application of the Fair Work Act 2009, particularly sections concerning the variation of enterprise agreements. The Commission had to determine whether the proposed changes met the criteria for a "better off overall test," which requires that employees be no worse off and at least some employees better off financially. Furthermore, the Commission had to consider whether the changes were procedurally fair and whether they complied with any relevant industrial instruments.

In delivering its decision, the Commission carefully weighed the evidence and submissions from both parties. It found that while some of the proposed changes had merit, they did not meet the better off overall test as required by the Fair Work Act. The Commission was particularly concerned about the impact on shift rostering, which it found could lead to increased employee fatigue and reduced job satisfaction. Consequently, the application for variation was dismissed. The Commission did, however, encourage the parties to continue negotiating to reach a mutually beneficial agreement.

The Fair Work Commission's decision serves as a reminder of the stringent requirements for varying enterprise agreements under the Fair Work Act. It underscores the importance of ensuring that any changes proposed are not only procedurally fair but also benefit the employees overall. The Commission's decision was a clear directive for the parties to engage in further negotiations to reach a more acceptable agreement.

Premium Victoria Pty Ltd T/A Premium Showers & Robes

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established