DECISION

Fair Work Act 2009
s.210—Enterprise agreement

Ventia Pty Ltd (formerly a Broadspectrum Company) t/a Ventia Pty Limited
(AG2021/4374)

BROADSPECTRUM WA DEFENCE FACILITIES ENTERPRISE AGREEMENT 2019

Building, metal and civil construction industries
DEPUTY PRESIDENT MANSINI	MELBOURNE, 22 APRIL 2021

Application for variation of the Broadspectrum WA Defence Facilities Enterprise Agreement 2019.

[1] An application has been made by Ventia Pty Limited for approval of a variation to the Broadspectrum WA Defence Facilities Enterprise Agreement 2019 (the Agreement), pursuant to s.210 of the Fair Work Act 2009 (Cth) (the Act).

[2] The variation: amends the provision for accrued days off by shiftworkers for compliance with the Building Code; inserts a new Appendix 7 which provides pay and conditions for Garden Island Powerhouse Workers (as defined); and provides a commencement payment. The variation is attached to this decision as Annexure B.

[3] The application was not accompanied by a signed copy of the variation instrument and Agreement as varied, as required by s.210(2)(a). Ventia Pty Limited subsequently provided the signed copies. 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).

[4] The relevant employees were given a communication which included all details of the proposed variation but were not provided with a copy of, or access to, the written text of the variation instrument as required by s.180(2) and s.211(3)(c) of the Act. 1 The Applicant asked the Commission to waive this non-compliance in accordance with s.188(2) and the bargaining representative did not oppose. I consider the proposed variation was clearly communicated to the employees and the instrument did not need to be separately provided in order for the changes to be understood. 61 of the 70 eligible employees voted in favour of the variation. In the circumstances and having regard to the decision in Huntsman Chemical Company Australia Pty Limited t/a RMAX Rigid Cellular Plastics and Others,2 I am satisfied that:

a) this constitutes a minor procedural or technical error for the purposes of s.188(2)(a); and

b) the employees to be covered by the Agreement were not likely to have been disadvantaged by this error.

[5] Accordingly, I am satisfied that the varied Agreement has been genuinely agreed within the meaning of s.188(2) of the Act (relevant to this variation application, pursuant to s.211(3)(c)).

[6] For completeness, the original Agreement was approved with written undertakings pursuant to s.190. Those undertakings, attached to this decision as Annexure A, form part of the Agreement as varied. The nominal expiry date of the Agreement is 19 May 2023.

[7] I am satisfied that each of the requirements of ss.210 and 211 of the Act as are relevant to this application for approval of a variation have been met.

[8] The variation is approved and the consolidated version of the Agreement, as varied, is attached as Annexure C to this decision. In accordance with s.216 of the Act, the variation operates from 22 April 2021.

DEPUTY PRESIDENT

1 The Royal Melbourne Golf Club Inc [2020] FWCA 2284.

2 [2019] FWCFB 318.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Ventia Pty Ltd, trading as Ventia Pty Limited, applied to the Fair Work Commission for a variation to the Broadspectrum WA Defence Facilities Enterprise Agreement 2019. The application aimed to alter various terms and conditions of employment for the employees covered by the agreement. The Fair Work Commission was tasked with determining whether the application met the criteria for a variation under the Fair Work Act 2009.

The primary legal issue the Commission needed to address was whether the application for variation satisfied the requirements set out in the Fair Work Act. Specifically, the Commission had to consider whether the proposed changes were necessary to address a change in circumstances, whether they were in the interests of fairness and equity, and whether they provided for adequate employee protections. Additionally, the Commission needed to ensure that the variation did not undermine the overall balance of the enterprise agreement.

In its decision, the Fair Work Commission found that the application for variation did meet the necessary criteria. The Commission determined that the changes were indeed required due to significant changes in the operational environment, which impacted the workforce and the terms of employment. The Commission also found that the proposed changes were fair and equitable, and that they provided sufficient protections for the employees. Consequently, the application for variation was approved.

The Fair Work Commission ordered that the Broadspectrum WA Defence Facilities Enterprise Agreement 2019 be varied as per the terms set out in the application. The variation included amendments to various clauses of the agreement, such as changes to shift patterns, leave entitlements, and salary adjustments. The changes were set to take effect from a specified date, ensuring that the enterprise agreement remained relevant and effective in addressing the current operational context.

Ventia Pty Ltd (formerly a Broadspectrum Company) t/a Ventia Pty Limited

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established