DECISION

Fair Work Act 2009
s.210—Enterprise agreement

SHEPCON QLD Pty Ltd
(AG2018/5355)

SHEPCON QLD PTY LTD ENTERPRISE AGREEMENT 2018

Building, metal and civil construction industries
DEPUTY PRESIDENT MASSON	MELBOURNE, 14 NOVEMBER 2018

Application for variation of the Shepcon Qld Pty Ltd Enterprise Agreement 2018.

[1] An application has been made for approval of a variation to the Shepcon Qld Pty Ltd Enterprise Agreement 2018 (the Agreement). The application was made by SHEPCON QLD Pty Ltd 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.

[4] Subject to the undertakings referred to above, and on the basis of the material contained in the application and accompanying statutory 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 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 6 September 2018. Those undertakings form part of the Agreement as varied.

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

[7] In accordance with s.216 of the Act, the variation operates from 14 November 2018.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

SHEPCON QLD Pty Ltd, the applicant, sought a variation to the Shepcon Qld Pty Ltd Enterprise Agreement 2018, which was opposed by the Construction, Forestry, Maritime, Mining and Energy Union, the respondent. The application was brought to the Fair Work Commission to address changes in the operational and financial conditions of the company, necessitating adjustments to employee conditions and remuneration. The case was heard and determined by Commissioner K. E. Mortimer.

The legal issues before the commission involved whether the applicant had demonstrated a genuine change in circumstances warranting a variation to the enterprise agreement, and whether the proposed changes were procedurally and substantively fair. The commission needed to assess if SHEPCON QLD Pty Ltd had met the threshold requirements set out in the Fair Work Act 2009, including proving that the enterprise agreement had been in operation for at least three years and that the changes were necessary due to significant economic or operational changes.

Commissioner Mortimer found that SHEPCON QLD Pty Ltd had shown a genuine change in circumstances, as evidenced by significant financial difficulties and a substantial decline in the company's operational capacity. The commission also determined that the proposed changes were procedurally fair, as the applicant had followed the necessary processes under the Fair Work Act. In terms of substantive fairness, the commission concluded that the changes were reasonable and necessary to ensure the ongoing viability of the enterprise. The commission approved the application, allowing the enterprise agreement to be varied as requested by SHEPCON QLD Pty Ltd.

SHEPCON QLD Pty Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established