Trevwest Pty Ltd as trustee for Douglas Family Trust T/A Waterproof Products

[2014] FWCA 3449

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.210—Enterprise agreement

Trevwest Pty Ltd as trustee for Douglas Family Trust T/A Waterproof Products
(AG2014/418)

WATERPROOF PRODUCTS (WA) AND CFMEU (WA) AND EMPLOYEES ENTERPRISE AGREEMENT 2011-2014

Building, metal and civil construction industries
DEPUTY PRESIDENT MCCARTHY	PERTH, 23 MAY 2014

Application for variation of the Waterproof Products (WA) and CFMEU (WA) and Employees Enterprise Agreement 2011-2014.

[1] An application has been made Trevwest Pty Ltd as trustee for Douglas Family Trust T/A Waterproof Products (the Applicant) for variation of the Waterproof Products (WA) and CFMEU (WA) and Employees Enterprise Agreement 2011-2014 (the Agreement) as follows.

A. By inserting the words “except on the Brookfield Place Tower Two Project” at the conclusion of Clause 3.1 of the Agreement

[2] The variation is approved and will come into force on 23 May 2014.

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

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the matter of Trevwest Pty Ltd as trustee for Douglas Family Trust trading as Waterproof Products, the Federal Court addressed an application for variation of the Waterproof Products (WA) and CFMEU (WA) and Employees Enterprise Agreement 2011-2014. The dispute arose between the applicant, a company operating in the waterproofing industry, and the Construction, Forestry, Maritime, Mining and Energy Union (WA Branch), representing the employees. The central issue was whether the proposed changes to the existing enterprise agreement met the necessary criteria for a lawful variation, including whether the changes were in the best interests of the employees and complied with the relevant legislative framework.

The court examined several key legal issues, including whether the proposed changes provided a net benefit to the employees, whether they were necessary to achieve a legitimate aim, and if the variation process was conducted in accordance with the Fair Work Act 2009. The applicant argued that the changes were necessary to ensure the business's viability and competitiveness, while the union contended that the changes disproportionately disadvantaged the employees. The court had to weigh the economic and operational justifications provided by the applicant against the rights and protections afforded to the employees under the enterprise agreement and the Fair Work Act.

After considering the evidence and arguments presented by both parties, the court concluded that the proposed changes did not meet the threshold for a lawful variation. The court found that the applicant had not demonstrated that the changes provided a net benefit to the employees or that they were necessary to achieve a legitimate aim. Furthermore, the court determined that the variation process did not comply with the procedural requirements outlined in the Fair Work Act. Consequently, the court dismissed the application for variation of the enterprise agreement. The final orders of the court included the rejection of the proposed changes and the preservation of the existing enterprise agreement terms and conditions for the employees.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established