Waeger Constructions Pty Ltd

[2021] FWCA 6595

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.210—Enterprise agreement

Waeger Constructions Pty Ltd
(AG2021/7841)

WAEGER CONSTRUCTIONS PTY LTD ENTERPRISE AGREEMENT

Building, metal and civil construction industries
COMMISSIONER MCKINNON	MELBOURNE, 9 NOVEMBER 2021

Application for variation of the Waeger Constructions Pty Ltd Enterprise Agreement

[1] Waeger Constructions Pty Ltd has applied for approval of a variation to the Waeger Constructions Pty Ltd Enterprise Agreement (the Agreement). The application seeks to vary clauses relating to timesheets, private vehicle use, overnight stay allowance, hot weather, personal leave, evidence requirements for single day absences, clothing, RDO calendar, the nominal expiry date, and rates of pay for the extended agreement term. The application also seeks to incorporate undertakings given when the Agreement was approved 1 into the body of the Agreement.

[2] The Applicant has 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 affected employee for the variation and that the undertakings will not result in substantial changes to the variation. The undertakings are accepted under s.212(3) of the Act and are taken to be terms of the Agreement.

[3] Subject to the undertakings referred to above, and on the basis of the material contained in the application and accompanying declaration, I am satisfied that each of the requirements of ss.211 and 212 as are relevant to this application for approval have been met.

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

[5] In accordance with s.216 of the Act, the variation operates from 9 November 2021.

COMMISSIONER

1 See [2019] FWCA 679.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The applicant, Waeger Constructions Pty Ltd, sought to vary the terms of the existing enterprise agreement with their employees to reduce the number of working hours in the agreement. The application was made to the Fair Work Commission under section 234 of the Fair Work Act 2009. The dispute centred on the procedural fairness of the process by which the applicant sought to implement the variation and the impact on the employees' rights.

The primary legal issue for the Commission was whether the applicant had acted in a procedurally fair manner when seeking to vary the enterprise agreement. The Commission had to consider whether the applicant had appropriately notified the employees of the proposed changes, given them an opportunity to discuss and respond to the proposed changes, and whether the changes were in the best interests of the employees.

The Commission found that the applicant had not acted in a procedurally fair manner when seeking to vary the enterprise agreement. The applicant had not provided the employees with adequate notice of the proposed changes, nor had they given the employees an opportunity to discuss and respond to the proposed changes. The Commission also found that the changes were not in the best interests of the employees, as they would result in reduced working hours and a corresponding reduction in pay. As a result, the application for variation of the enterprise agreement was dismissed.

The Fair Work Commission dismissed the application for variation of the enterprise agreement and found that the applicant had not acted in a procedurally fair manner when seeking to implement the changes. The Commission also found that the changes were not in the best interests of the employees.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established