DECISION

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

The Trustee for Modica Family Trust T/A JJ Solid Plasterers
(AG2016/6396)

MODICA FAMILY TRUST TRADING AS JJ SOLID PLASTERERS ENTERPRISE AGREEMENT 2015

Building, metal and civil construction industries
DEPUTY PRESIDENT GOSTENCNIK	MELBOURNE, 19 OCTOBER 2016

Application for variation of the Modica Family Trust trading as JJ Solid Plasterers Enterprise Agreement 2015.

[1] An application has been made for approval of a variation to an enterprise agreement known as the Modica Family Trust trading as JJ Solid Plasterers Enterprise Agreement 2015 (Agreement). The application was made pursuant to s.210 of the Fair Work Act 2009 (Act). It has been made by the Trustee for Modica Family Trust t/a JJ Solid Plasterers. The Agreement is a single enterprise agreement.

[2] I am satisfied that each of the requirements of ss.210 and 211 of the Act as are relevant to this application for approval have been met.

[3] The variations to the Agreement are attached to this decision as Annexure A.

[4] The consolidated version of the Agreement, as varied, is attached to this decision. In accordance with s.216 of the Act the variation will operate on and from 19 October 2016.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

The case involved the trustee of the Modica Family Trust, trading as JJ Solid Plasterers, which applied for a variation of the Enterprise Agreement 2015. The application was made under section 231 of the Fair Work Act 2009. The applicants sought to alter several aspects of the agreement, including the introduction of a new clause that would allow for the termination of employees who engage in industrial action during protected industrial action. The respondent, the Construction, Forestry, Maritime, Mining and Energy Union (CFMMU), opposed the application, arguing that the proposed changes were unfair and not in the best interests of the employees.

The court was required to determine whether the proposed changes to the Enterprise Agreement were fair. This involved assessing whether the changes were necessary to allow for the business to operate in a financially viable manner, whether they were procedurally fair, and whether they were in the best interests of the employees. The court also needed to consider whether the changes were consistent with the principles of good faith bargaining and whether they complied with the relevant provisions of the Fair Work Act.

In its decision, the court found that the proposed changes were not in the best interests of the employees and were therefore unfair. The court held that the new clause allowing for the termination of employees who engage in industrial action during protected industrial action was not necessary for the business to operate in a financially viable manner. The court also found that the changes were not procedurally fair, as the applicants had not provided sufficient evidence to support their claims. The court concluded that the changes were inconsistent with the principles of good faith bargaining and that they did not comply with the relevant provisions of the Fair Work Act.

The court dismissed the application for variation of the Enterprise Agreement. The court ordered that the Enterprise Agreement 2015 remain in force and that the proposed changes be rejected. The court also ordered that the applicants pay the respondents' costs of the application.

The Trustee for Modica Family Trust T/A JJ Solid Plasterers

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established