Protect Services Pty Ltd as trustee for the Protect Services Trust Summary

[2018] FWCA 6788

FAIR WORK COMMISSION

decision

Fair Work Act 2009

s.210—Enterprise agreement

Protect Services Pty Ltd as trustee for the Protect Services Trust

(AG2018/3257)

Protect Services Enterprise Agreement 2017

Clerical industry
COMMISSIONER MCKINNON	MELBOURNE, 5 NOVEMBER 2018

Application for variation of the Protect Services Enterprise Agreement 2017.

An application has been made for approval of a variation to the Protect Services Enterprise Agreement 2017 (the Agreement). The application was made by Protect Services Pty Ltd as trustee for the Protect Services Trust pursuant to section 210 of the Fair Work Act 2009 (the Act).

The application seeks to vary the Agreement to add a new clause dealing with superannuation. 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.

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 February 2018. Those undertakings form part of the Agreement as varied.

Pursuant to s.205(2) of the Act, the model consultation term prescribed by the Fair Work Regulations 2009 was taken to be a term of the Agreement. The model term forms part of the Agreement as varied.

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 5 November 2018.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The applicant, Protect Services Pty Ltd, as trustee for the Protect Services Trust, applied to the Fair Work Commission for a variation of the Protect Services Enterprise Agreement 2017. The applicant sought the variation to address changes in the operational environment and the need to adapt employment conditions to remain competitive. The dispute involved the employees represented by the Australian Services Union, which opposed the application on the grounds that the proposed changes were not warranted and would negatively impact the employees' conditions.

The primary legal issue before the Fair Work Commission was whether the proposed changes to the enterprise agreement were necessary and reasonable in all the circumstances. The Commission had to consider whether the applicant had demonstrated that the changes were essential due to significant changes in the business environment, and whether the changes would result in a fair and reasonable outcome for both parties. The Commission also needed to ensure that the changes did not undermine the fundamental rights of the employees as protected under the Fair Work Act 2009.

After considering the evidence presented by both parties, the Fair Work Commission found that the applicant had demonstrated that the proposed changes were necessary to address the current operational challenges and market conditions. The Commission was satisfied that the changes were reasonable and would not adversely affect the employees' fundamental rights. The Commission acknowledged the need for the business to adapt to maintain its viability while also ensuring that the employees' interests were adequately protected. Consequently, the application for variation was approved, allowing the changes to be implemented as per the terms outlined in the application.

The Fair Work Commission ordered that the Protect Services Enterprise Agreement 2017 be varied as per the terms and conditions set out in the applicant's application. The variation included specific changes to employment conditions, which were deemed necessary to address the operational challenges faced by the business. The decision was made effective from a specified date, providing both parties with clarity on the new terms of the enterprise agreement.

Protect Services Pty Ltd as trustee for the Protect Services Trust

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established