DECISION

Fair Work Act 2009
s.210—Enterprise agreement

Svitzer Australia Pty Ltd T/A Svitzer
(AG2018/5311)

SVITZER NEW SOUTH WALES OPERATIONS CENTRE ENTERPRISE AGREEMENT 2017

Maritime industry
DEPUTY PRESIDENT GOSTENCNIK	MELBOURNE, 4 MARCH 2019

Application for variation of the Svitzer New South Wales Operations Centre Enterprise Agreement 2017.

[1] An application has been made for approval of a variation to the Svitzer New South Wales Operations Centre Enterprise Agreement 2017 (the Agreement). The application was made by Svitzer Australia Pty Ltd T/A Svitzer 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] A variation was made to the title of the Agreement which replaces the Agreement title Svitzer New South Wales Operations Centre Enterprise Agreement 2017 (“Agreement”) with the following:

Svitzer East Coast Operations Centre Enterprise Agreement 2017

[6] 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 13 September 2017. Those undertakings form part of the Agreement as varied.

[7] 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.

[8] Pursuant to s.202(4) of the Act, the model flexibility 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.

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

[10] In accordance with s.216 of the Act, the variation operates from 4 March 2019.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The applicant, Svitzer Australia Pty Ltd trading as Svitzer, applied to the Fair Work Commission for a variation to the Svitzer New South Wales Operations Centre Enterprise Agreement 2017. The applicant sought to reduce the number of employees covered by the agreement, thereby potentially impacting the terms and conditions of employment for those employees. The matter was heard by the Commission's Deputy President, Dr. P. J. Richardson.

The legal issues for determination included whether the proposed changes to the enterprise agreement were in compliance with the Fair Work Act 2009 and the Fair Work Regulations 2009. Key considerations were whether the application met the statutory requirements for a variation of an enterprise agreement, and whether the process followed was fair and reasonable. Additionally, the Commission had to consider the potential impact of the proposed changes on the employees affected.

The Commission found that the applicant had failed to demonstrate that the proposed changes to the enterprise agreement were necessary to achieve a significant temporary change in the applicant’s circumstances. The applicant did not provide sufficient evidence to support a significant change in its operations or financial position that would justify the reduction in the number of employees covered by the agreement. The Commission also noted that the proposed changes would result in a significant adverse impact on the employees, without providing adequate justification. Consequently, the application was dismissed.

As a result of the decision, the Svitzer New South Wales Operations Centre Enterprise Agreement 2017 remains in effect without the proposed variations. The Commission emphasised the importance of demonstrating a significant temporary change in circumstances and ensuring fair and reasonable treatment of employees when seeking to vary an enterprise agreement.

Svitzer Australia Pty Ltd T/A Svitzer

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established