FWC approves EBA variations despite union claims of coercion

FWC approves EBA variations despite union claims of coercion.png

FWC approves EBA variations despite union claims of coercion

The Fair Work Commission (FWC) has approved variations to an existing enterprise agreement, rejecting union claims that the employer acted in a coercive manner towards employees while communicating the proposed variations.

The employer, Compass Group (Australia) Pty Ltd (Compass), applied to vary the Compass Group (ESS Cannington) Enterprise Agreement 2019, pursuant to s210 of the Fair Work Act 2009 (the Act). Compass provides catering at the Cannington mine. The variations sought included new pay and conditions for new employees engaged after the variations become operative and removing Brisbane as a point of hire for ‘fly-in, fly-out’ (FIFO) workers.

The variation application was opposed by the Australian Workers Union (AWU), who is a signatory to the agreement. Their primary objection was based on claims that the employer did not explain the proposed variations in an appropriate manner, as required by the Act. They referred to documents provided to employees that claimed if the variations were not approved, “ESS will not retain the contract at Cannington and demobilisation of staff will begin” (first statement) and that employees “will not be entitled to redundancy pay as this is categorised as ordinary and customary turnover of labour due to the client contract ending.” (second statement).

Deputy President Colman rejected the unions claim, determining the first statement not “to have been coercive. It was informative, not threatening. Nor was it otherwise inappropriate”. Further, he noted, “In my opinion, the answer to the first disputed statement contained highly relevant information that was properly conveyed to employees as part of the expansion of the terms of the variation to the Agreement and the effect of those terms.”

In regard to the second statement referring to redundancy implications, Deputy President Colman commented, “in my opinion the statement conveys to employees the company’s view that the exception would apply … In my view it was reasonable for the company to adopt a position on this matter and to advise the employees of this position. Importantly, there is no information before me to suggest that the company’s position was not well-founded”.

In contrast to the union’s position, the Deputy President indicated that the second statement assisted employees “to make an informed and genuine decision about whether to vote to approve the variation to the agreement”.

The AWU also claimed they had not been notified of the variation until it was submitted for the vote. Although this is a not mandatory requirement under the Act, it could have some impact on whether the FWC approves variations.

In any event, Deputy President Colman accepted evidence from Compass that they had engaged with the AWU on several occasions to discuss the variation. As he stated, “I am satisfied that the AWU knew that the company proposed to vary the agreement. Based on the information before me, there is nothing that causes me to conclude that there are reasonable grounds for believing that the variation to the Agreement was not genuinely agreed to by employees”.

The variation sought was approved with an operative date of 9 March 2021.

Compass Group (Australia) Pty Ltd T/A ESS (AG2021/193) 9 March 2021

For queries about enterprise agreement negotiations or variations, or other employment questions, please contact Dean Cameron at Workforce Advisory Lawyers – We Know Employment Law on 1300 WAL LAW, 0417 622 178 or via email to dean.cameron@workforceadvisory.com.au

Disclaimer: This information is provided as general advice on workplace relations and employment law. It does not constitute legal advice, and it is always advisable to seek further information regarding specific workplace issues. Liability limited by a scheme approved under professional standards legislation.

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