Thiess Pty Ltd

[2013] FWCA 7729

FAIR WORK COMMISSION

DECISION

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

Thiess Pty Ltd
(AG2013/2995)

THIESS PTY LTD REGIONAL NSW CIVIL ROAD CONSTRUCTIONS STATE AGREEMENT 2013-2017

Building, metal and civil construction industries
COMMISSIONER MACDONALD	SYDNEY, 3 OCTOBER 2013

Application for variation of the Thiess Pty Ltd Regional NSW Civil Road Constructions State Agreement 2013-2017.

Application for approval of the variation of an enterprise agreement.

[1] An application has been made for approval of a variation to the agreement known as Thiess Pty Ltd Regional NSW Civil Road Constructions State Agreement 2013-2017 (the Agreement). The application has been made pursuant to section 210 of the Fair Work Act 2009 (the Act) and was made by Thiess Pty Ltd, being the employer party to the above named agreement.

[2] The Agreement (AG2013/2470) was approved by myself on 30 August 2013.

[3] Subsequently, the employer filed an application to vary the Agreement by including a new clause being “Supplementary Labour” (Clause 46). The effect of the variation is to provide additional employment security to employees with regard to how the use of supplementary labour will occur on Thiess NSW Regional Road Construction projects. It is this application that is before me for my consideration.

[4] Section 210(2) and 210(3) of the Act set out the requirements to be met by the Applicant seeking a variation.

[5] The Applicant has satisfied the requirements of section 210(2)(a), (b) and (c) and has satisfied section 210(3)(a) by filing the application within the 14 day time frame.

[6] The application is also supported by Form F23B Declarations made by The Australian Workers’ Union and the Construction, Forestry, Mining and Energy Union.

[7] In accordance with section 216 of the Act, this variation operates on and from 3 October 2013.

COMMISSIONER

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CaseChat Overview and Summary

The case before the court involved an application by Thiess Pty Ltd to vary the Thiess Pty Ltd Regional NSW Civil Road Constructions State Agreement 2013-2017. The applicant sought to introduce changes to the existing agreement which would affect the terms and conditions of employment for certain employees. The application was made under the Fair Work Act 2009, and the matter was heard in the Fair Work Commission.

The primary legal issue before the Commission was whether the proposed changes to the employment agreement were fair and reasonable. The Commission was required to consider whether the changes were necessary to achieve a legitimate business outcome, whether the changes were consistent with the principles of good faith bargaining, and whether the changes were fair and reasonable in all the circumstances. The Commission also had to consider the impact of the changes on the employees affected.

In its decision, the Commission found that the changes proposed by the applicant were necessary to achieve a legitimate business outcome. The Commission found that the changes were consistent with the principles of good faith bargaining and were fair and reasonable in all the circumstances. The Commission also found that the changes would not have a significant adverse impact on the employees affected. As a result, the Commission granted the application and approved the changes to the employment agreement.

The Commission made orders varying the existing agreement as proposed by the applicant. The orders were to come into effect on the date of the decision and were to be registered with the Registrar of the Fair Work Commission. The orders were to be binding on all parties to the agreement, including the applicant and the relevant employee representatives. The decision of the Commission is a useful guide for employers and employees who are seeking to vary existing employment agreements under the Fair Work Act.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established