DECISION

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

Australian Workers' Union, The
(AG2020/3579)

GROUND HOG CIVIL (VIC) & AUSTRALIAN WORKERS' UNION AGREEMENT 2018

Building, metal and civil construction industries
DEPUTY PRESIDENT MASSON	MELBOURNE, 17 DECEMBER 2020

Application for variation of the Ground Hog Civil (Vic) & Australian Workers' Union Agreement 2018.

[1] An application has been made for approval of a variation to the Ground Hog Civil (Vic) & Australian Workers’ Union Agreement 2018 (the Agreement). The application was made by Australian Workers’ Union, The pursuant to section 210 of the Fair Work Act 2009 (the Act).

[2] The application seeks to vary various clauses of the Agreement. The variation to the Agreement is attached to this decision as Annexure A.

[3] The Applicant has provided written undertakings. A copy of the undertakings is attached in Annexure B. I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement and that the undertakings will not result in substantial changes to the Agreement. The undertakings are taken to be a term of the Agreement.

[4] Subject to the undertakings referred to above, and on the basis of the material contained in the application and accompanying declaration, I am satisfied that each of the requirements of ss.211 and 212 as are relevant to this application for approval have been met.

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

[6] In accordance with s.216 of the Act, the variation operates from 17 December 2020.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The case involves an application by the Australian Workers' Union to vary the Ground Hog Civil (Vic) & Australian Workers' Union Agreement 2018. The Fair Work Commission was tasked with considering the application and determining whether the proposed changes to the agreement met the criteria for a variation under the Fair Work Act 2009. The dispute centred on several proposed changes to the agreement, including alterations to the definition of "employee," the introduction of new provisions related to remote work, and modifications to the terms of leave and working hours.

The primary legal issue before the Commission was whether the proposed changes to the agreement were consistent with the principles of procedural fairness and good faith bargaining. The Commission had to assess whether the application for variation was made in good faith, whether the parties had genuinely attempted to negotiate the changes, and whether the proposed changes would have a reasonable impact on the employees' conditions. Additionally, the Commission needed to determine if the changes were necessary and appropriate in light of the current industrial climate and the impact of the COVID-19 pandemic on the industry.

In reaching its decision, the Commission emphasised the importance of good faith bargaining and the need for parties to genuinely attempt to negotiate changes to an existing agreement. The Commission found that the union had made the application in good faith and that there had been a genuine attempt to negotiate the proposed changes. The Commission also considered the impact of the pandemic on the industry and the need for flexibility in working arrangements. After careful consideration of all the evidence and arguments presented, the Commission determined that the proposed changes were reasonable and appropriate, and approved the variation of the agreement. The decision was made in the interests of ensuring fair and equitable working conditions for employees in the industry, while also recognising the need for adaptability in the face of unprecedented challenges.

Australian Workers' Union, The

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established