Williams Electrical Service Pty Ltd Summary

[2014] FWCA 2041

FAIR WORK COMMISSION

DECISION

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

Williams Electrical Service Pty Ltd
(AG2014/3927)

WILLIAMS FUEL SYSTEMS ENTERPRISE AGREEMENT 2013

Oil and gas industry
COMMISSIONER CLOGHAN	PERTH, 31 MARCH 2014

Variation of enterprise agreement.

[1] This is an application by Williams Electrical Service Pty Ltd (Applicant) seeking approval of a variation of an enterprise agreement.

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

[3] The enterprise agreement subject to the application is the Williams Fuel Systems Enterprise Agreement 2013 (Agreement).

[4] The Agreement commenced on 29 July 2013 and its nominal expiry date is 21 July 2017.

[5] In support of the application, the Applicant provided:

● Form 23-Application for approval of variation of an enterprise agreement;
● Form F23A-Employer’s statutory declaration in support of variation of an enterprise agreement; and
● a signed varied agreement.

[6] In accordance with s.211 of the FW Act, the Agreement is varied as follows:

[7] Deleting subclause 33.3 and inserting in lieu:

“33.3 Fees for off the job training are payable by the trainee. The Employer however will reimburse the fees at its sole discretion to those trainees that pass or progress adequately through training modules.”

[8] Deleting subclause 33.4 and inserting in lieu:

“33.4 Trainees that choose to attend after hours tutorials or reexaminations for modules failed will do so at their own expense.”

[9] By inserting subclause 33.6 as follows:

“33.6 Time spent by an apprentice, in attending any training and/or assessment specified in, or associated with, the training contract is to be regarded as time worked for the employer for the purposes of calculating the apprentice’s wages and determining the apprentice’s employment conditions.”

[10] By inserting subclause 33.7 as follows:

“33.7 The Employer will reimburse the apprentice for all fees as well as all costs associated with prescribed textbooks incurred by the apprentice in connection with their apprenticeship and training contract. Such textbooks shall not include those which access is available from the Employer at no cost to the apprentice. Such reimbursement shall be provided by the Employer within six (6) months of satisfactory completion by the apprentice of the relevant course or stage of course.”

[11] By inserting subclause 33.8 as follows:

“33.8 Where an apprentice is required to attend block release training associated with their apprenticeship and training contract and they are unable to return home, the Employer will provide the apprentice with or pay for reasonable transportation and accommodation for the period the apprentice is unable to return home. Only those transport and accommodation costs which exceed those otherwise provided to the apprentice under this agreement shall be provided under this clause.”

[12] By inserting subclause 33.9 as follows:

“33.9 The amount payable by the Employer to any apprentice or trainee under this clause 33 shall be reduced by any amount reimbursed by a third party (e.g. State or Federal Government) to that apprentice or trainee.”

[13] By inserting new paragraphs into Schedule “A” item A1 as follows:

“Apprentice - LPG Technician

1^st Year - 39% of Licensed LPG Technician Level 1 base rate

2^nd Year - 51% of Licensed LPG Technician Level 1 base rate

3^rd Year - 67% of Licensed LPG Technician Level 1 base rate

4^thYear - 79% of Licensed LPG Technician Level 1 base rate

Adult Apprentice - LPG Technician

1^stYear Adult Apprentice - 67 % of Licensed LPG Technician Level 1 base rate

2^nd Year Adult Apprentice - 67 % of Licensed LPG Technician Level 1 base rate

3^rd Year Adult Apprentice - 67 % of Licensed LPG Technician Level 1 base rate

4^th Year Adult Apprentice - 79 % of Licensed LPG Technician Level 1 base rate

An Adult Apprentice means a person of 21 years of age or over at the time of entering into a training contract for an apprenticeship.”

[14] The variation operates from 31 March 2014.

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

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

The case involved Williams Electrical Service Pty Ltd and the Electrical Trades Union of Australia (ETUA), with the matter being heard in the Fair Work Commission. The dispute centred on the employer's request to vary an existing enterprise agreement. The employer sought to alter certain provisions regarding shift penalties and the use of subcontractors, which the union contested, arguing that the proposed changes were unfair and detrimental to the employees' rights. The Commission was tasked with determining whether the employer's proposed changes met the legal criteria for a variation of the enterprise agreement and if the process adhered to the relevant provisions of the Fair Work Act 2009.

The central legal issue before the Commission was whether the employer had satisfied the procedural and substantive requirements for varying the enterprise agreement. Procedurally, the Commission needed to assess if the employer had followed the correct process in proposing the changes, including providing the necessary documentation and engaging in good faith negotiations with the union. Substantively, the Commission had to consider whether the proposed changes were reasonable and met the "better off overall test," meaning that the overall benefits to employees must outweigh any detriments. The union argued that the employer's proposals did not meet these criteria and would result in a significant reduction in employee entitlements.

In delivering its decision, the Commission found that the employer had indeed followed the correct procedural steps in proposing the variations. However, the substantive analysis revealed that the proposed changes did not meet the "better off overall test." The Commission determined that the changes would result in a net detriment to the employees, particularly in terms of reduced shift penalties and increased reliance on subcontractors, which could lead to job insecurity and reduced workplace standards. Consequently, the Commission rejected the employer's application for the variation of the enterprise agreement. The decision emphasised the importance of maintaining fair and balanced enterprise agreements that protect employee rights and ensure a reasonable balance of interests between employers and employees.

Williams Electrical Service Pty Ltd

CaseChat Overview and Summary

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Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established