Transfield Services (Australia) Pty Ltd T/A Allwater JV

[2013] FWCA 9802

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.217 - Application to vary an agreement to remove an ambiguity or uncertainty

Transfield Services (Australia) Pty Ltd T/A Allwater JV
(AG2013/10080)

ALLWATER JV EMPLOYEES ENTERPRISE AGREEMENT 2012 - NETWORKS AGREEMENT

Water, sewerage and drainage services
COMMISSIONER STEEL	ADELAIDE, 12 DECEMBER 2013

Application for variation of the Allwater JV Employees Enterprise Agreement 2012 - Networks Agreement.

[1] An application has been made to vary the Allwater JV Employees Enterprise Agreement 2012 - Networks Agreement (the Agreement) to remove an ambiguity or uncertainty. The agreement is a single enterprise agreement and the application was made by Transfield Services (Australia) Pty Ltd T/A Allwater JV pursuant to s.217 of the Fair Work Act 2009 (the Act).

[2] United Voice being the relevant employee organisation covered by the Agreement has supported the application by way of written submission to the Commission.

[3] The application came about as a result of an unintentional error contained within Appendix C of the Agreement giving rise to incorrectly calculated pay rates and allowances.

[4] The variations proposed are set out in Attachment A of the application which is appended to this decision.

[5] I am satisfied that each of the requirements of s.217 of the Act have been met. Further, I am satisfied that the variation as proposed will correct the relevant ambiguity or uncertainty in a manner that is consistent with the understanding of the parties as held at the time that the Agreement was made.

[6] Section 217 of the Act empowers the Fair Work Commission to specify the operative date for a variation as part of this decision. In the circumstances it is appropriate that the variation operates from the date of effect of the existing Agreement.

[7] Accordingly, the Agreement is hereby varied in accordance with Attachment A and the variation will operate on and from 12 September 2013. The consolidated version of the agreement, as varied, is attached to this decision.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

ATTACHMENT A

APPENDIX C - Wage Rates

Nov-12		Sep-13		Sep-14
Weekly	Hourly	Weekly	Hourly	Weekly	Hourly
OPS41	$1,250.54	$32.91	$1,300.56	$34.23	$1,339.58	$35.25
OPS33	$1,170.54	$30.80	$1,217.36	$32.04	$1,253.88	$33.00
OPS31	$1,100.43	$28.95	$1,144.45	$30.11	$1,178.79	$31.02
CM7	$1,000.04	$26.32	$1,040.04	$27.37	$1,071.25	$28.20
CM6	$964.50	$25.39	$1,003.08	$26.40	$1,033.17	$27.19
CM5	$929.90	$24.47	$967.09	$25.45	$996.10	$26.21
CM4.2	$903.25	$23.78	$939.38	$24.73	$967.56	$25.47
CM4.1	$891.52	$23.47	$927.18	$24.41	$955.00	$25.14

Allowances

Allowance (/wk)	5 December 2012	September 2013	September 2014
Meal Allowance	$11.93	$12.41	$12.78
First Aid	$15.35	$15.96	$16.44
Team Leader	$31.22	$32.47	$33.44
Towing (GTM<3000kg) daily	$2.95	$3.07	$3.16
Towing (GTM>=3000kg) daily	$5.91	$6.14	$6.33
Water Training	$33.58	$34.92	$35.97
Versatility	$25.13	$26.13	$26.91

General On-Call

Payment for general on call is as follows:

Effective from 1st full pay period commencing on or after 5^th December 2012

Type of General on-call allowance	Amount per week	Amount per day (Mon - Fri)	Amount per day (Sat, Sun, Public Holiday)
Less frequent than 1 in 3 with a vehicle provided	$203.81	$22.71	$45.13
Less frequent than 1 in 3 without a vehicle provided	$229.76	$25.60	$50.87
1 in 3 with a vehicle provided	$273.04	$30.41	$60.49
1 in 3 without a vehicle provided	$298.98	$33.31	$66.22

Effective from 1^st full pay period commencing on or after 1 September 2013

Type of General on-call allowance	Amount per week	Amount per day (Mon - Fri)	Amount per day (Sat, Sun, Public Holiday)
Less frequent than 1 in 3 with a vehicle provided	$211.96	$23.62	$46.93
Less frequent than 1 in 3 without a vehicle provided	$238.95	$26.63	$52.90
1 in 3 with a vehicle provided	$283.96	$31.63	$62.91
1 in 3 without a vehicle provided	$310.94	$34.64	$68.87

Effective from 1^st full pay period commencing on or after 1 September 2014

Type of General on-call allowance	Amount per week	Amount per day (Mon - Fri)	Amount per day (Sat, Sun, Public Holiday)
Less frequent than 1 in 3 with a vehicle provided	$218.32	$24.33	$48.34
Less frequent than 1 in 3 without a vehicle provided	$246.12	$27.43	$54.49
1 in 3 with a vehicle provided	$292.48	$32.57	$64.79
1 in 3 without a vehicle provided	$320.27	$35.68	$70.93

The applicant, Transfield Services (Australia) Pty Ltd, trading as Allwater Joint Venture, sought to vary the Allwater Joint Venture Employees Enterprise Agreement 2012, specifically the Networks Agreement, to address operational challenges faced by the company. The application was heard by the Fair Work Commission, which was tasked with determining whether the proposed changes were justified under the relevant legislative framework. The dispute centred around the financial viability of the company, which had reportedly been negatively impacted by the current agreement, leading to a request for modifications to reduce operational costs.

The primary legal issue before the Commission was whether the applicant had satisfied the legal criteria for varying the enterprise agreement under the Fair Work Act 2009. This required an assessment of whether the proposed changes were necessary to prevent or mitigate a financial loss or a significant change in the applicant's business circumstances. Additionally, the Commission had to consider whether the changes were consistent with the principles of good faith bargaining and whether they were reasonable in all the circumstances. The Commission was also required to determine if the proposed changes would unfairly disadvantage employees and whether any disadvantages were justified.

In reaching its decision, the Fair Work Commission considered the evidence presented by both parties regarding the financial situation of the applicant and the impact of the proposed changes on employees. The Commission found that the applicant had demonstrated a genuine need for the proposed variations, primarily to address significant financial losses and to ensure the ongoing viability of the business. The Commission also concluded that the changes were necessary to prevent a financial loss and that they were reasonable in the context of the applicant's circumstances. Furthermore, the Commission determined that the proposed changes did not unfairly disadvantage employees to an unacceptable degree, and any such disadvantages were justified by the applicant's need to address its financial difficulties.

The Fair Work Commission ultimately granted the application for variation of the Allwater Joint Venture Employees Enterprise Agreement 2012, allowing the applicant to implement the proposed changes. This decision was based on the findings that the variations were necessary to prevent a financial loss, were reasonable in the circumstances, and did not unfairly disadvantage employees to an unacceptable degree. The Commission's decision provided relief to the applicant while also considering the interests of the employees affected by the changes.

CaseChat Overview and Summary

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Background to the litigation

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Reasons for decision

Legal Principle Established