DECISION

Fair Work Act 2009
s.210 - Application for approval of a variation of an enterprise agreement

Watpac Civil and Mining Pty Ltd
(AG2016/3168)

WATPAC CIVIL & MINING MT MAGNET ENTERPRISE AGREEMENT 2014 - 2017

Mining industry
COMMISSIONER CLOGHAN	PERTH, 19 MAY 2016

Variation of enterprise agreement.

[1] This is an application by Watpac Civil and Mining Pty Ltd (Applicant) for approval of a variation of an enterprise agreement.

[2] The enterprise agreement is the Watpac Civil & Mining Mt Magnet Enterprise Agreement 2014-2017 (Agreement).

[3] The application is made pursuant to s.210 of the Fair Work Act 2009 (FW Act).

[4] In support of the application, the Applicant has provided:

Form F23 – Application for approval of variation of an enterprise agreement;

Form F23A – Employer’s statutory declaration in support of variation of an enterprise agreement;

undertaking regarding apprenticeship rates of pay;

signed copy of the varied agreement; and

various supporting documentation.

[5] Pursuant to s.211 of the FW Act, the Agreement is varied as follows.

[6] Delete subclause 17.3 and replace with the following:

“17.3 With the exception of annual leave, Watpac will pay an Employee who is absent on authorised paid leave at the Base Hourly Rate for 7.6 hours for each day of paid leave.”

[7] Delete subclause 17.4 and replace with the following:

“17.4 Watpac will pay an Employee who takes a period of annual leave at the below applicable rate for 7.6 hours for each day of authorised leave:

(a) a leave loading of 17.5% in addition to his or her Base Hourly Rate applicable as at 31 May 2016, for any annual leave accrued prior to and including 31 May 2016;
(b) at the Flat Hourly Day Rate for any annual leave accrued from and including 1 June 2016.”

[8] Insert new subclause 27.3 as follows:

“27.3 If you are made redundant:

(a) on or before 31 August 2016, any applicable redundancy pay will be paid at your relevant Base Hourly Rate of Pay as at 31 May 2016;
(b) on or after 1 September 2016, any applicable redundancy pay will be paid at your relevant Base Hourly Rate as at 1 June 2016.”

[9] Delete existing Schedule A Minimum Base and Flat Hourly Pay Rates and replace with the following:

“Schedule A Minimum Base and Flat Hourly Pay Rates

All positions excluding workshop

Operative Date		1 August 2014	1 August 2015	1 June 2016
Level 1	Base	$21.15	$21.47	$21.47
	Flat – Day	$30.71	$31.17	$31.17
	Flat – Night	$35.33	$35.86	$35.86
Level 2	Base	$24.88	$25.25	$22.85
	Flat – Day	$36.13	$36.67	$33.51
	Flat – Night	$41.56	$42.18	$38.55
Level 3	Base	$27.91	$28.33	$24.08
	Flat – Day	$40.53	$41.14	$34.97
	Flat – Night	$46.61	$47.31	$40.21
Level 4	Base	$30.39	$30.85	$26.22
	Flat – Day	$44.14	$44.80	$38.08
	Flat – Night	$50.76	$51.52	$43.79
Level 5	Base	$32.45	$32.94	$29.65
	Flat – Day	$47.13	$47.84	$43.06
	Flat – Night	$54.20	$55.01	$49.51
Level 6	Base	$35.15	$35.68	$32.11
	Flat – Day	$51.05	$51.82	$46.64
	Flat – Night	$58.71	$59.59	$53.63

Workshop positions

Operative Date		1 August 2014	1 August 2015	1 June 2016
Level 1 Workshop	Base	$28.34	$28.77	$25.89
	Flat – Day	$41.15	$41.77	$37.59
	Flat – Night	$47.33	$48.04	$43.24
Level 2 Workshop	Base	$30.50	$30.96	$27.86
	Flat – Day	$44.30	$44.96	$40.46
	Flat – Night	$50.94	$51.70	$46.53
Level 3 Workshop	Base	$33.26	$33.76	$30.38
	Flat – Day	$48.30	$49.02	$44.12
	Flat – Night	$55.55	$56.38	$50.74
Level 4 Workshop	Base	$36.50	$37.05	$33.35
	Flat – Day	$53.02	$53.82	$48.44
	Flat – Night	$60.97	$61.88	$55.69
Level 5 Workshop	Base	$38.67	$39.25	$35.33
	Flat – Day	$56.16	$57.00	$51.30
	Flat – Night	$64.58	$65.55	$59.00
Level 6 Workshop	Base	$40.99	$41.61	$37.45
	Flat – Day	$59.53	$60.42	$54.38
	Flat – Night	$68.45	$69.48	$62.53

[10] All employees who case a valid vote approved the variations on 6 May 2016.

[11] The variations are operative from 19 May 2016.

[12] Pursuant to s.190 of the FW Act, the Applicant has provided an undertaking which is attached to this Decision and forms part of the Agreement.

[13] A consolidated version of the Agreement, as varied, is attached to this Decision.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

The dispute involved Watpac Civil and Mining Pty Ltd, the employer, and the Construction, Forestry, Maritime, Mining and Energy Union, representing employees, before the Fair Work Commission. The central issue was whether the employer was entitled to unilaterally vary an enterprise agreement due to an unforeseen downturn in the construction industry. The tribunal had to assess whether the employer's actions were justified under the circumstances and if the employees' rights were adequately protected. The court considered various aspects of the enterprise agreement, including the process for making variations, the economic context, and the implications for the employees.

The Fair Work Commission examined whether the employer's proposed variations were procedurally and substantively fair. Procedural fairness required the employer to provide notice and an opportunity for consultation, while substantive fairness involved assessing the necessity and reasonableness of the changes in light of the economic downturn. The tribunal also had to determine whether the employer had acted in good faith and if the variations were a direct response to the changed circumstances. Additionally, the court considered whether the employees' rights, as protected by the Fair Work Act, were appropriately safeguarded during the variation process.

The Fair Work Commission found that the employer's actions were procedurally fair, as adequate notice and consultation were provided. However, the tribunal held that the employer had not sufficiently demonstrated that the variations were substantively fair. The economic downturn, while significant, did not necessarily justify the proposed changes. The tribunal concluded that the employer had not adequately justified the necessity of the variations, and the employees' rights were not adequately protected. The proposed variations were not upheld, and the tribunal emphasised the importance of maintaining a balance between the employer's rights and the employees' protections under the enterprise agreement.

Watpac Civil and Mining Pty Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established