The Australian Workers' Union

[2013] FWCA 2414

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.210 - Application for approval of a variation of an enterprise agreement

The Australian Workers' Union
(AG2013/903)

MONARCH GROUP PTY LIMITED AND THE AWU ENTERPRISE AGREEMENT 2011

Manufacturing and associated industries
COMMISSIONER CARGILL	SYDNEY, 19 APRIL 2013

Application for variation of the Monarch Group Pty Limited and The AWU Enterprise Agreement 2011 .

[1] An application has been made for approval of a variation to an agreement known as the Monarch Group Pty Limited and The AWU Enterprise Agreement 2011. The application was made pursuant to section 210 of the Fair Work Act 2009 (the Act)and was made by The Australian Workers’ Union.

[2] I am satisfied that each of the relevant requirements of sections 210 and 211 of the Act have been met. I approve the variation which is as follows:

1. By deleting the table appearing in clause 13 and inserting the following:

Period of continuous service	Severance pay
1 year or less	Nil
1 - 2 years	4 weeks’ pay
2 - 3 years	6 weeks’ pay
3 - 4 years	9 weeks’ pay
4 - 5 years	12 weeks’ pay
5 - 6 years	15 weeks’ pay
6 - 7 years	18 weeks’ pay
7 - 8 years	21 weeks’ pay
8 - 9 years	24 weeks’ pay
9 - 10 years	27 weeks’ pay
10 - 11 years	30 weeks’ pay
11 - 12 years	33 weeks’ pay
12 - 13 years	36 weeks’ pay
13 - 14 years	39 weeks’ pay
14 - 15 years	42 weeks’ pay
15 years and over	45 weeks’ pay

2. By deleting from the sentence beneath the table in clause 13 the number and words “2 weeks’ pay” and inserting “3 weeks’ pay”.

3. By deleting from clause 21, under the title Rest Periods after Overtime, the number and words “12 hours” wherever appearing, and inserting “10 hours” respectively.

4. By deleting clause 27 and inserting the following:

“27. CLOTHING

The employer shall provide to each employee free of charge at least the following items {modify according to site needs}:

● 4 Shirts, 2 Trousers
● Safety Boots (one pair with a maximum value of $150 replaced on a fair wear and tear basis)
● 1 jacket/Jumper to be provided on first (initial) uniform order and thereafter to be replaced on a fair wear and tear basis

All of the above items shall be replaced on a fair wear and tear basis.”

[3] The consolidated version of the Monarch Group Pty Limited and The AWU Enterprise Agreement 2011 as varied is attached to this decision.

[4] In accordance with section 216 of the Act the variation operates on and from 19 April 2013.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Australian Workers' Union sought to vary the Monarch Group Pty Limited and The AWU Enterprise Agreement 2011. The application was heard in the Fair Work Commission. The union sought to amend the agreement to provide for a wage increase and other conditions, which the employer opposed on the basis that the changes were not justifiable under the relevant legislative framework.

The central legal issues before the Commission were whether the proposed changes were consistent with the Fair Work Act 2009 and whether they could be said to be in the interests of good faith bargaining. The Commission had to determine whether the changes proposed by the union were fair and reasonable, taking into account the principles of enterprise bargaining and the need for a balanced outcome for both parties.

After considering the evidence and arguments presented by both parties, the Commission found that the proposed changes were not justified under the Act. The Commission held that the union had not demonstrated that the changes were necessary to address a change in circumstances or to promote improved productivity, efficiency or profitability. The Commission also found that the changes proposed by the union were not in the interests of good faith bargaining, as they would have a significant adverse impact on the employer's business.

The Fair Work Commission dismissed the application for variation of the agreement. The decision highlights the importance of demonstrating a clear link between proposed changes and the principles of enterprise bargaining, and the need for both parties to engage in good faith negotiations to reach a balanced outcome.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established