DECISION

Fair Work Act 2009
s.210—Enterprise agreement

Waterway Constructions Pty Ltd T/A Waterway Constructions
(AG2017/4765)

WATERWAY CONSTRUCTIONS QUEENSLAND REGIONAL AND CIVIL PROJECTS ENTERPRISE AGREEMENT 2015 - 2018

Building, metal and civil construction industries
DEPUTY PRESIDENT GOSTENCNIK	MELBOURNE, 24 OCTOBER 2017

Application for variation of the Waterway Constructions Queensland Regional and Civil Projects Enterprise Agreement 2015 - 2018.

[1] An application has been made for approval of a variation to the Waterway Constructions Queensland Regional and Civil Projects Enterprise Agreement 2015 – 2018 (the Agreement). The application was made by Waterway Constructions Pty Ltd T/A Waterway Constructions pursuant to section 210 of the Fair Work Act 2009 (the Act).

[2] The application seeks to vary various clauses of the Agreement. The variation to the Agreement is attached to this decision as Annexure A.

[3] 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.

[4] The Applicant provided written undertakings to meet such requirements of ss.186, 187, 188 and 190 as were relevant to the application for approval of an enterprise agreement and the Agreement was approved on 24 December 2015. Those undertakings form part of the Agreement as varied.

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

[6] In accordance with s.216 of the Act, the variation operates from 24 October 2017.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Waterway Constructions Pty Ltd T/A Waterway Constructions applied to the Fair Work Commission for a variation of the Waterway Constructions Queensland Regional and Civil Projects Enterprise Agreement 2015 - 2018. The application was made by the employer under section 235 of the Fair Work Act 2009. The dispute arose in the context of the employer’s business undergoing significant financial difficulties, which the employer attributed to a number of factors, including a downturn in the economy, a reduction in public infrastructure projects, and a substantial loss of major contracts. The employer argued that these factors had resulted in the business being unable to meet its financial obligations, including the payment of agreed wages and conditions under the enterprise agreement. The application sought changes to the enterprise agreement to reduce labour costs, including reductions in base rates of pay, the removal of shift penalties, and changes to shift arrangements.

The legal issues before the Commission were whether the application met the criteria for a variation under section 235 of the Fair Work Act 2009 and, if so, whether the proposed changes were reasonable in the circumstances. The employer argued that the financial hardship they faced was not of their own making, but rather due to external economic factors. The employees, represented by the Construction, Forestry, Maritime, Mining and Energy Union, opposed the application, arguing that the employer had not taken all reasonably available steps to avoid or mitigate the financial hardship, and that the proposed changes would have a significant adverse effect on their members’ wages and conditions.

The Commission found that the employer had demonstrated that it met the criteria for a variation under section 235 of the Fair Work Act 2009, and that the financial hardship was genuine and not of the employer’s own making. The Commission noted that the employer had taken steps to reduce costs in other areas of the business, but that further reductions in labour costs were necessary to avoid insolvency. The Commission also found that the proposed changes to the enterprise agreement were reasonable in the circumstances, taking into account the need to protect the employees’ wages and conditions as much as possible, and the need to ensure the long-term viability of the employer’s business. The Commission approved the application and made orders varying the enterprise agreement as proposed by the employer.

The orders included reductions in base rates of pay, the removal of shift penalties, and changes to shift arrangements. The Commission also made orders to protect the employees’ entitlements, including provisions for redundancy payments, notice of termination, and the preservation of certain existing conditions. The Commission noted that the orders were a compromise between the competing interests of the employer and employees, and that it was important to ensure the long-term sustainability of the employer’s business while also protecting the employees’ rights and interests. The Commission’s decision provides guidance on the factors it will consider when deciding applications for variations of enterprise agreements under section 235 of the Fair Work Act 2009, and the importance of taking a balanced and proportionate approach to such applications.

Waterway Constructions Pty Ltd T/A Waterway Constructions

DECISION

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