Can I challenge a recent change to our company's multi-employer agreement?

The situation

I work in a large warehouse in Melbourne, Victoria, and our workplace is part of a massive multi-enterprise agreement that covers several different companies in our sector. On the 5th of October, my manager sat us all down in a meeting and informed us that the company had officially made a variation to our current agreement regarding how overtime and shift allowances are calculated. They told us the change was already finalised and effective immediately. I feel like this change is quite unfair to the casual staff, especially since it impacts our weekly pay cheque quite significantly. I tried speaking to my supervisor about it on the 7th of October, but they just said the decision was already made and there was nothing they could do at a local level. I am not part of a specific union, but I know there are several employee organisations that usually represent our interests. Since the change happened about ten days ago, I am feeling quite rushed. I am unsure if I actually have the right to ask the Fair Work Commission to look at this change and approve or reject it, and if I do, am I allowed to lodge that request myself as an individual worker, or does it have to come from a union?

Detailed Analysis

Under the Fair Work Act 2009, a variation to a multi-enterprise agreement (an agreement that covers multiple employers and employees in a sector) requires approval from the Fair Work Commission (FWC) to be valid.

Regarding your ability to lodge a request, you do not need a union to do it for you. The law specifically allows individuals in your position to take action. Section 216EA states that for an application for approval of a variation, "one of the following must apply to the FWC for approval of the variation: ... (b) an affected employee"^[1]. An 'affected employee' is someone whose employment is impacted by the changes being made. Since the changes to overtime and shift allowances directly impact your weekly pay, you qualify as an affected employee.

However, timing is your biggest hurdle. The law requires that "The application must be made: (a) within 14 days after the variation is made"^[1]. Because your manager informed you of the change on 5 October, your 14-day window is closing very rapidly. While the FWC has the power to extend this period if they consider it "fair to extend that period"^[1], you should not rely on this and should aim to lodge your application immediately.

It is important to note that while you can apply for the FWC to approve or reject the variation, the FWC's role in disputes is limited. If you are involved in a dispute regarding the proposed variation, the FWC may deal with it, but the law states "The FWC must not arbitrate (however described) the dispute"^[2]. This means they cannot simply step in and decide the 'fairness' of the pay change for you through arbitration, but they do oversee the formal approval process of the variation itself.

Statutory Citations

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