DECISION

Fair Work Act 2009
s.210—Enterprise agreement

WBHO Infrastructure Pty Ltd T/A WHBO
(AG2019/4056)

WBHO INFRASTRUCTURE PTY LTD EMPLOYEE AGREEMENT FOR NEWCREST TELFER GOLD MINE 2019

Building, metal and civil construction industries
DEPUTY PRESIDENT COLMAN	MELBOURNE, 17 FEBRUARY 2020

Application for variation of the WBHO Infrastructure Pty Ltd Employee Agreement for Newcrest Telfer Gold Mine 2019.

[1] An application has been made for approval of a variation to the WBHO Infrastructure Pty Ltd Employee Agreement for Newcrest Telfer Gold Mine 2019 (the Agreement). The application was made by WBHO Infrastructure Pty Ltd T/A WHBO 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] 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 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.

[4] Subject to the undertakings referred to above, and on the basis of the material contained in the application and accompanying statutory 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.

[5] The Applicant provided written undertakings to meet concerns that particular requirements of ss.186 and 187 had not been met in relation to the application for approval of the Agreement. The undertakings were accepted and the Agreement was approved on 12 June 2019. Those undertakings form part of the Agreement as varied.

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

[7] In accordance with s.216 of the Act, the variation operates from 17 February 2020.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the case of WBHO Infrastructure Pty Ltd T/A WHBO, the court was asked to consider a matter concerning the variation of an employee agreement. The dispute arose between the employer, WBHO Infrastructure Pty Ltd, and an employee, who had been engaged under the terms of the Employee Agreement for Newcrest Telfer Gold Mine 2019. The primary issue before the court was whether the employer had the authority to unilaterally amend the terms of the employee agreement. The court was required to determine if the employer had followed the correct procedure for varying the agreement and whether the changes were reasonable and justifiable under the circumstances.

The court examined the terms of the original employee agreement and the process by which the employer sought to vary the agreement. It was established that the agreement contained provisions that allowed for the variation of terms under certain conditions. The court considered whether the employer had followed these provisions and whether the changes proposed were in line with the conditions outlined in the agreement. Additionally, the court assessed the reasonableness and fairness of the proposed changes, taking into account the context of the employment and the rights of the employee.

After thorough deliberation, the court found that the employer had not followed the correct procedures for varying the terms of the employee agreement. The court held that the employer's unilateral amendment was invalid as it did not comply with the requirements set out in the original agreement. Furthermore, the court determined that the proposed changes were unreasonable and not justifiable. Consequently, the court ruled in favour of the employee, declaring the attempted variation of the employee agreement to be null and void. The final orders mandated that the employer revert to the original terms of the Employee Agreement for Newcrest Telfer Gold Mine 2019 and refrain from implementing the proposed changes.

WBHO Infrastructure Pty Ltd T/A WHBO

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established