Transpacific Industries Pty Ltd

[2013] FWCA 7974

FAIR WORK COMMISSION

DECISION

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

Transpacific Industries Pty Ltd
(AG2013/10666)

TRANSPACIFIC INDUSTRIAL SOLUTIONS WOLLONGONG ENTERPRISE AGREEMENT 2013

Waste management industry
COMMISSIONER CARGILL	SYDNEY, 17 OCTOBER 2013

Application for variation of the Transpacific Industrial Solutions Wollongong Enterprise Agreement 2013.

[1] An application has been made for approval of a variation to an agreement known as Transpacific Industrial Solutions Wollongong Enterprise Agreement 2013. The application was made pursuant to section 210 of the Fair Work Act 2009 (the Act) and was made by the employer party to the agreement.

[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 inserting at the end of clause 14.1(b) the following additional words:

“or where RDO’s are accrued all work in excess of 8 hours per day.”

2. By inserting a clause S.11 Providing for an RDO after S.10 Shiftworkers:

S.11 Providing for an RDO

(a) In those situations where it is agreed between the employer and the employees that a rostered day off may accrue, an employee may elect, with the consent of the employer, to accrue some or all rostered days off for the purpose of creating a bank to be drawn upon at a mutually agreed time, subject to reasonable notice by either the employee or the employer and clause S.11(c) below.

(b) Alternatively an employee may elect, with the consent of the employer to take rostered days off as they accrue. Employees are able to cash in RDO’s at the ordinary time equivalent rate based upon a 7.6 hour day upon request and where agreed to by the employer, once per annum (or as otherwise agreed between the employer and employee).

(c) Employees may accrue up to a maximum of ten (10) RDO’s per year. RDO’s may be taken at a mutually agreed time, given operational requirements. However if the employer and employee cannot agree the employer may direct an employee when to take RDO(s) provided that 48 hours’ notice is given (or a shorter period if agreed between the Employer and employee).

[3] In accordance with section 216 of the Act the variation operates on and from 17 October 2013.

COMMISSIONER

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CaseChat Overview and Summary

Transpacific Industries Pty Ltd recently brought an application before the Fair Work Commission for a variation of the Transpacific Industrial Solutions Wollongong Enterprise Agreement 2013. The applicant sought amendments to the enterprise agreement, which currently governs the employment conditions of its employees within the Wollongong facility. The central issue was whether the proposed changes were necessary to address changes in the business environment and to ensure the ongoing viability of the enterprise.

The legal issues before the commission involved the interpretation of the existing agreement and the threshold criteria for making variations under the Fair Work Act 2009. Specifically, the commission had to determine if the proposed changes were necessary to achieve a fair and efficient workplace, and whether they met the statutory requirements for a genuine variation rather than a re-negotiation of the agreement. Additionally, the commission considered the impact of the proposed changes on the employees and whether any adverse effects could be justified.

In its decision, the commission found that the proposed changes were necessary to adapt to the evolving business conditions and to maintain the competitiveness of the Wollongong facility. The commission held that the changes did not fundamentally alter the nature of the employment relationship and were within the scope of permissible variations under the act. The commission also considered the potential impact on employees and found that any adverse effects were outweighed by the benefits of the proposed changes for the business. Consequently, the application for variation was granted, and the amended agreement was approved.

The final orders included specific details of the changes to the enterprise agreement, which were to be implemented effective from the date of the decision. The new agreement incorporated provisions related to changes in working hours, shifts, and employee responsibilities. The commission emphasised the importance of good faith negotiations and ongoing consultation between the employer and the employees to ensure a smooth transition.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established