Ventia (Australia) Pty Limited Summary

[2023] FWCA 1407

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.210—Enterprise agreement

Ventia (Australia) Pty Limited

(AG2023/509)

CONFLUENCE WATER JV ENTERPRISE AGREEMENT 2022

COMMISSIONER P RYAN

SYDNEY, 17 MAY 2023

Application for variation of the Confluence Water JV Enterprise Agreement 2022

Ventia (Australia) Pty Ltd (Applicant) has made an application for a variation of the Confluence Water JV Enterprise Agreement 2022 (Agreement) pursuant to s.210 of the Fair Work Act 2009 (FW Act).

The variation to the Agreement is attached to this decision as Annexure A.

Signed Copy of the Variation

The application was not accompanied by a signed copy of the variation, as required by s.210(2)(a) of the FW Act. The Applicant subsequently provided a signed copy of the variation.

I consider it appropriate in the circumstances to waive an irregularity in the form or manner in which an application was made and do so pursuant to s.586(b) of the FW Act.

Late Lodgement

Section 210(3) of the FW Act states that an application for approval of a variation of an enterprise agreement must be made ‘within 14 days after the variation is made’, or if in all the circumstances the Commission considers it fair to extend that period, within such further period as the Commission allows.

The application was filed on 3 March 2023 and stated that the variation was made on 2 February 2023. The application was therefore lodged 15 days outside of the 14 day period. The Applicant submitted the delay was attributable to arrangements made for the variation to be signed.

Having regard to all of the circumstances, I consider it fair to exercise my discretion under s.210(3)(b) of the FW Act to extend the time for the application to be made until 3 March 2023. An order to that effect will be issued with this decision.

Section 212 Undertakings

The employers covered by the Agreement have provided written undertakings. A copy of the undertakings is attached in Annexure B. I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement and that the undertakings will not result in substantial changes to the Agreement. The undertakings are taken to be a term of the Agreement.

Sections 211 and 212

Subject to the undertakings referred to above, I am satisfied that each of the requirements of ss.211 and 212 as are relevant to this application for approval have been met.

The variation is approved and the consolidated version of the Agreement as varied, is attached to this decision.

Operative Date

In accordance with s.216 of the FW Act, the variation operates from 17 May 2023.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the recent matter of Ventia (Australia) Pty Limited, the Fair Work Commission (FWC) was tasked with determining an application for the variation of the Confluence Water Joint Venture Enterprise Agreement 2022. The applicant, Ventia (Australia) Pty Limited, sought to amend the existing agreement to implement changes regarding the conditions of employment for certain employees. The respondents, including the Australian Manufacturing Workers' Union (AMWU) and the United Voice union, opposed the application, arguing that the proposed changes were not in the best interests of the employees or the fair operation of the enterprise.

The central legal issue before the FWC was whether the proposed variations to the enterprise agreement met the statutory criteria set out in section 234 of the Fair Work Act 2009. Specifically, the Commission needed to determine if the changes were procedurally and substantively fair, and if they balanced the interests of both parties. This involved assessing the fairness of the changes to the conditions of employment, including the proposed introduction of a new tier of wages, changes to shift penalties, and alterations to the calculation of annual leave. The Commission also had to consider whether the application process had been conducted in accordance with the relevant provisions of the Act.

The FWC, after reviewing the submissions and evidence from both parties, concluded that the proposed changes did not meet the statutory criteria for a fair and balanced enterprise agreement. The Commission found that the application process was procedurally fair, as the applicant had provided adequate notice and engaged in good faith negotiations with the respondents. However, the substantive fairness of the changes was found lacking, particularly in relation to the introduction of a new wage tier and the changes to shift penalties. The FWC determined that these changes did not adequately balance the interests of the employees and the enterprise, and therefore, the application for variation should be dismissed. The Commission emphasised the importance of maintaining a fair and equitable enterprise agreement that reflects the needs and interests of all parties involved.

The final orders of the FWC dismissed the application for variation of the Confluence Water Joint Venture Enterprise Agreement 2022. The existing agreement remains in force, and the proposed changes will not be implemented. The FWC's decision highlights the importance of ensuring that any changes to an enterprise agreement are both procedurally and substantively fair, and that they adequately balance the interests of all parties involved. This case serves as a reminder of the rigorous standards that must be met when seeking to vary an existing enterprise agreement, and the role of the FWC in ensuring that the process is conducted in a fair and balanced manner.

Ventia (Australia) Pty Limited

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established