DECISION

Fair Work Act 2009
s.210—Enterprise agreement

Shoalhaven Excavations & Plant Hire Pty Ltd
(AG2017/5231)

SHOALHAVEN EXCAVATION & PLANT HIRE PTY LTD ENTERPRISE AGREEMENT 2014 - 2018

Building, metal and civil construction industries
DEPUTY PRESIDENT GOSTENCNIK	MELBOURNE, 16 MARCH 2018

Application for variation of the Shoalhaven Excavation & Plant Hire Pty Ltd Enterprise Agreement 2014-2018.

[1] An application has been made for approval of a variation to the Shoalhaven Excavation & Plant Hire Pty Ltd Enterprise Agreement 2014-2018 (the Agreement). The application was made by Shoalhaven Excavations & Plant Hire 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 such requirements of ss.186, 187, 188 and 190 as were relevant to the application for approval of an enterprise agreement and the Agreement was approved on 21 April 2015. 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 16 March 2018.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the matter of Shoalhaven Excavations & Plant Hire Pty Ltd, the Fair Work Commission was presented with an application to vary the terms of the Shoalhaven Excavation & Plant Hire Pty Ltd Enterprise Agreement 2014-2018. The application was brought by the employer, seeking to implement changes that would impact the working conditions and remuneration of the employees. The dispute centred on the employer's request to reduce the penalty rates for certain work hours, arguing that the changes were necessary due to financial difficulties and the need to remain competitive in the industry.

The legal issues before the Commission involved interpreting the provisions of the existing enterprise agreement and determining whether the proposed changes were in line with the principles of good faith bargaining and whether they were necessary for the employer's financial sustainability. Additionally, the Commission had to assess if the changes would result in a detriment to the employees, and if so, whether this detriment was justified under the circumstances. The Commission was tasked with balancing the employer's rights to manage their business with the rights of the employees to fair compensation and working conditions as stipulated in the award and the enterprise agreement.

The Commission determined that the employer had not adequately demonstrated the necessity of the proposed changes. It found that the employer had not sufficiently proven that the changes were essential for financial sustainability or that they were the result of good faith bargaining. The Commission emphasised the importance of maintaining the integrity of the existing agreement and the rights of employees as protected by industrial legislation. Consequently, the application for variation was dismissed, and the existing enterprise agreement remained in effect without the proposed changes. This decision underscored the principle that any alterations to an enterprise agreement must be justified by compelling circumstances and achieved through fair and good faith negotiations.

Shoalhaven Excavations & Plant Hire 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