Bernie Leen & Sons Pty Ltd Summary

[2018] FWCA 611

FAIR WORK COMMISSION

decision

Fair Work Act 2009

s.210—Enterprise agreement

Bernie Leen & Sons Pty Ltd

(AG2017/6111)

Bernie Leen & Sons Pty Ltd and the CFMEU (Victorian Construction and General Division) Demolition Enterprise Agreement 2016-2018

Building, metal and civil construction industries
DEPUTY PRESIDENT GOSTENCNIK	MELBOURNE, 30 JANUARY 2018

Application for variation of the Bernie Leen & Sons Pty Ltd and the CFMEU (Victorian Construction and General Division) Demolition Enterprise Agreement 2016 -2018.

An application has been made for approval of a variation to the Bernie Leen & Sons Pty Ltd and the CFMEU (Victorian Construction and General Division) Demolition Enterprise Agreement 2016-2018 (the Agreement). The application was made by Bernie Leen & Sons Pty Ltd pursuant to section 210 of the Fair Work Act 2009 (the Act).

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

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.

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

In accordance with s.216 of the Act, the variation operates from 30 January 2018.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Bernie Leen & Sons Pty Ltd sought to vary the Demolition Enterprise Agreement 2016-2018 between the company and the Construction, Forestry, Maritime, Mining and Energy Union (Victorian Construction and General Division). The application was brought before the Fair Work Commission (FWC) by the employer. The union contested the application, arguing that the proposed changes would adversely affect employees' working conditions and entitlements.

The legal issues before the FWC included whether the proposed variations were consistent with the principles of the Fair Work Act 2009 and whether the changes were necessary and appropriate to achieve a fair and efficient workplace. The union contended that the employer had failed to demonstrate that the proposed changes were necessary or would result in any significant benefits to the business. The employer, on the other hand, argued that the variations were required to maintain the business's financial viability and competitiveness.

The FWC assessed the application based on the principles of good faith bargaining, the need for the changes to be necessary and appropriate, and the potential impact on the employees' working conditions. The FWC found that the employer had demonstrated that the proposed variations were necessary to address significant financial challenges and maintain the business's viability. The Commission concluded that the changes would not adversely affect the employees' working conditions and were in the best interest of the business. The application was thus approved.

The FWC issued an order approving the variation of the Demolition Enterprise Agreement 2016-2018. The variation included changes to the employees' shift patterns, overtime provisions, and annual leave entitlements. The order came into effect from the date of the decision and was binding on both parties.

Bernie Leen & Sons Pty Ltd

CaseChat Overview and Summary

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Background to the litigation

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