ADCO Constructions Pty Ltd

[2017] FWCA 6966

[2017] FWCA 6966

FAIR WORK COMMISSION

DECISION

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

ADCO Constructions Pty Ltd
(AG2017/5534)

ADCO CONSTRUCTIONS PTY LTD AND CFMEU UNION COLLECTIVE AGREEMENT 2015 - 2019

Building, metal and civil construction industries
COMMISSIONER HUNT	BRISBANE, 22 DECEMBER 2017

Application for variation of the ADCO Constructions Pty Ltd and CFMEU Union Collective Agreement 2015 - 2019.

[1] An application has been made for variation of the ADCO Constructions Pty Ltd and CFMEU Union Collective Agreement 2015 – 2019 (the Agreement) pursuant to s.210 of the Fair Work Act 2009 (the Act). It has been made by ADCO Constructions Pty Ltd (the Employer).

[2] The Employer filed a statutory declaration in support of the application which was declared by Simon Hawkins, Construction Manager.

[3] The variation can be found at Annexure A of this decision.

[4] The approval of the variation was subject to some contest by the Construction, Forestry, Mining and Energy Union (CFMEU) and was listed for hearing before me on 19 and 21 December 2017.

[5] I have taken into consideration the material filed in the Fair Work Commission (Commission), including the evidence and submissions adduced at the hearings.

[6] I am satisfied that each of the requirements of ss.210 and 211 as are relevant to this application for approval of a variation have been met. Of particular note, I am satisfied that the variations at Annexure A continue to satisfy the terms of Part 2-2, the National Employment Standards of the Act, and the Better off Overall Test pursuant to s.193(1) of the Act. The requirements in Regulation 2.09A of the Fair Work Regulations 2009 for the signing of a variation to the enterprise agreement have been met.

[7] The primary matter of contest before the Commission was whether the Commission was satisfied that pursuant to s.188(c), ‘there are no other reasonable grounds for believing that the agreement has not been genuinely agreed to by the employees.’ I am satisfied that the variation has been genuinely agreed to by the employees as I have determined that there are no other reasonable grounds for believing that the variation to the Agreement has not been genuinely agreed to by the employees.

[8] The variation to the Agreement is approved. In accordance with s.216 of the Act the variation will operate from 22 December 2017.

[9] The consolidated version of the Agreement, as varied, is attached to this Decision.

[10] The CFMEU submitted that if the variation to the Agreement were approved, the Commission should exercise its power under s.586 to amend the Agreement so that:

● The name of the CFMEU is omitted from the title of the Agreement as varied; and

● Any reference to the CFMEU is omitted from the body of the Agreement as varied

[11] The Employer does not oppose the CFMEU’s request.

[12] Section 586 of the Act affords the Commission broad discretion to make corrections or amendments to any application, or other document relating to a matter before it on any terms it considers appropriate.

[13] In my view the changes sought by the CFMEU are akin to the Commission approving a substantial variation to an enterprise agreement in a way other than as prescribed in Division 7 of Part 2-4, of the Act. I doubt that s.586 of the Act affords the Commission the power to circumvent Part 2-4 of the Act and even if it does, I do not consider it would be an appropriate exercise of the Commission’s powers.

[14] If the CFMEU wish to press for the removal of its name from the Agreement, it should seek to do so under one of the mechanisms provided for in the Act, one of those being a variation of the Agreement voted upon by employees covered by the Agreement.

[15] I will provide separate reasons for this Decision at a later date.

COMMISSIONER

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Annexure A