The CVSG Electrical decision underscores the Commission`s willingness to expedite the review of applications for derogatory enterprise agreements in circumstances where this would provide additional flexibility to help employers cope with the significant effects of the COVID 19 pandemic and to help ensure the ongoing financial viability of a business. Employers have the option of amending an enterprise agreement to withhold or reduce an ongoing wage increase pursuant to an enterprise agreement. This option should be considered by employers who are experiencing financial difficulties as a result of COVID-19. An employer under an enterprise agreement may ask the workers concerned to amend the agreement to approve the proposed amendment by vote. An application for approval of an amendment to an enterprise agreement submitted to the Commission must contain the following documents: any agreed amendments must be agreed individually and must “better portray” the worker as a whole, so it is very likely that an IFA will not be as effective as an amendment to an enterprise agreement to address the effects of the COVID 19 pandemic in the workplace. The CEPU submitted that the introduction of the JobKeeper wage subsidy would reduce COVID-19`s financial burden on CVSG Electrical`s activities, so that the removal of pay rates for 2020 would no longer be justified. On this basis, the CEPU argued that the Commission could not be convinced that the amendment had actually been agreed by the workers. unless the FWC is satisfied that there are serious public interest reasons not to accept the amendment. There are likely to be further changes and changes in this area, as more and more employers try to change business agreements in the new fiscal year. If both agreements are supported and the Fair Work Commission approves the amendment, the amendment will come into force on a date set by the Commission for Fair Work.
Until then, the provisions of the existing agreements remain in force. In order to approve a request to amend an enterprise agreement to reduce or avoid a wage increase, the Commission must continue to be convinced that the amended enterprise agreement will pass the “best overall test”. However, at present, the Commission may authorize an amendment to an enterprise agreement that does not meet the “best overall test” if, due to exceptional circumstances, the approval of the agreement is not contrary to the public interest, for example. B if the proposed amendment is part of a reasonable strategy to help the employer cope with a short-term crisis. In its conclusion, the Commission found that the question of whether the workers had in fact accepted an enterprise agreement or an amendment to an enterprise agreement should be considered at the time of the worker`s agreement, taking into account the circumstances known at the time. An employer and its employees who are covered by an enterprise agreement may consider amending the agreement to include a COVID-19 timetable that suspends all inconsistent provisions of the agreement. If the Commission authorizes an amendment to an enterprise agreement after accepting an obligation to amend and the agreement applies to a single employer, the undertaking is considered a contractual clause, since the agreement applies to the employer. The signed copy must contain the full name and address of each person who signs the change; and a declaration of the person`s power to sign the amendment.