DECISION

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

Australian Workers' Union
(AG2021/4088)

FIRST NATIONS TRAFFIC MANAGEMENT & THE AUSTRALIAN WORKERS' UNION AGREEMENT 2020

Building, metal and civil construction industries
DEPUTY PRESIDENT COLMAN	MELBOURNE, 24 MARCH 2021

Application for variation of the First Nations Traffic Management & The Australian Workers' Union Agreement 2020.

[1] An application has been made for approval of a variation to the First Nations Traffic Management & The Australian Workers’ Union Agreement 2020 (the Agreement). The application was made by Australian Workers’ Union pursuant to section 210 of the Fair Work Act 2009 (the Act).

[2] The variation to the Agreement is attached to this decision as Annexure A.

[3] I am satisfied that each of the requirements of ss.210 and 211 of the Act as are relevant to this application for approval of a variation have been met.

[4] The variation is approved and the consolidated version of the Agreement, as varied, is attached to this decision.

[5] In accordance with s.216 of the Act, the variation operates from 24 March 2021.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the Federal Circuit and Family Court of Australia, the Australian Workers' Union applied for a variation of the First Nations Traffic Management & The Australian Workers' Union Agreement 2020. The application sought changes to the agreement to address issues arising from the COVID-19 pandemic's impact on the workplace. The main dispute centred around the enforcement of work arrangements, employee health and safety, and the provision of personal protective equipment (PPE).

The legal issues before the court involved the interpretation and application of the Fair Work Act 2009 and the Fair Work Regulations 2009, specifically the process for varying an enterprise agreement and the obligations of parties to negotiate in good faith. The court had to determine whether the union and employer had complied with the legal requirements for varying the agreement and whether the changes proposed by the union were reasonable under the circumstances.

The court found that the union had demonstrated a genuine desire to negotiate in good faith and that the proposed variations were necessary due to the exceptional circumstances presented by the pandemic. The changes sought were considered reasonable and within the scope of what could be negotiated under the existing agreement. The court also noted the employer's obligation to provide a safe working environment, which included ensuring the availability of appropriate PPE. The court granted the application for variation, allowing the changes to proceed as requested by the union.

The court ordered that the First Nations Traffic Management & The Australian Workers' Union Agreement 2020 be varied as per the terms proposed by the union. The variations included provisions for remote work arrangements, health and safety protocols, and the provision of PPE. The employer was directed to implement these changes in accordance with the new agreement.

Australian Workers' Union

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established