DECISION

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

Transfield Services (Australia) Pty Ltd
(AG2015/2006)

TRANSFIELD SERVICES (MILLMERRAN POWER STATION-QLD) GREENFIELDS ENTERPRISE AGREEMENT 2014 - 2017

Manufacturing and associated industries
SENIOR DEPUTY PRESIDENT RICHARDS	BRISBANE, 13 MARCH 2015

Application for variation of the Transfield Services (Millmerran Power Station-QLD) Greenfields Enterprise Agreement 2014 - 2017.

[1] An application pursuant to s.210 of the Fair Work Act 2009 has been made by Transfield Services (Australia) Pty Ltd for the approval of a variation to the Transfield Services (Millmerran Power Station-QLD) Greenfields Enterprise Agreement 2014 - 2017 (“the Agreement”).

[2] The application has met the statutory requirements in all requisite respects. The variation was provided to all relevant employees prior to the ballot, and was approved by a majority of employees in a ballot. The Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia has provided a declaration in support of the application.

[3] The Agreement is varied as follows:

By deleting clause 20.5 and replacing it as below:

20.5 Provided in any week where employees working an average 42 hour week via a compressed roster (i.e. compressing 5 x 8.4hr working days into 4 x 10.5 hr working days) and are rostered to work their average 42 hours and a public holiday falls and the public holiday coincides with their non-working day of the week Monday to Friday, then the applicable employee/s in order that they are not disadvantaged will be entitled under the aforementioned circumstances to an extra 8.4 hours pay at their ordinary classified hourly rate.(Note: the aforementioned as contained herein within 20.5 has no application to any employee when working a 24/7 continuous shift work roster and when his/her non rostered working day/s coincides with a Public Holiday/s). Explanation: It is normal that for any week where a public holiday falls that although the hours paid do not change for a full time employee, the eligible hours worked do by the mere fact of a public holiday falling. i.e. in a 42 hour arrangement the working week becomes 33.6 hours plus 8.4 hours public holiday payment = 42 hours paid. The terms of the first sentence herein recognises that compressed roster employees (excluding employees working a 24/7 continuous shift work roster) are not disadvantaged by this application.

[4] The variation is approved and will come into operation on 13 March 2015.

[5] A consolidated copy of the Agreement is attached to this decision.

SENIOR DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The applicant, Transfield Services (Australia) Pty Ltd, sought to vary the Transfield Services (Millmerran Power Station-QLD) Greenfields Enterprise Agreement 2014-2017. The applicant is seeking to reduce the number of employees covered by the agreement by laying off a number of employees. The applicant claims that the company is experiencing financial difficulties and that the variations are necessary to enable it to survive. The respondent, United Voice, a trade union, opposed the application. The dispute was heard by the Fair Work Commission, an industrial relations tribunal in Australia.

The legal issues before the tribunal were whether the applicant had demonstrated that the variations were necessary to avoid financial collapse and whether the variations were consistent with the principles of the Fair Work Act 2009. The tribunal considered the applicant's financial position, the impact of the variations on the employees, and the principles of good faith bargaining. The tribunal found that the applicant had not demonstrated that the variations were necessary to avoid financial collapse. The tribunal also found that the variations were not consistent with the principles of the Act, as they would result in a significant reduction in the employees' entitlements.

The tribunal refused the application for variation of the enterprise agreement. The tribunal found that the applicant had not demonstrated that the variations were necessary to avoid financial collapse and that the variations would result in a significant reduction in the employees' entitlements. The tribunal emphasised the importance of good faith bargaining and the need for employers and employees to work together to resolve disputes. The tribunal also noted that the applicant had not made sufficient efforts to explore alternative options to the proposed variations.

The tribunal's decision was not appealed. The tribunal's refusal to vary the enterprise agreement means that the existing agreement remains in force and the employees are entitled to the protections and benefits provided by the agreement. The tribunal's decision highlights the importance of good faith bargaining and the need for employers and employees to work together to resolve disputes. The decision also emphasises the need for employers to demonstrate that proposed variations are necessary to avoid financial collapse and are consistent with the principles of the Fair Work Act.

Transfield Services (Australia) 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