Brookfield Multiplex Australasia Pty Ltd

[2013] FWCA 9463

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.210—Enterprise agreement

Brookfield Multiplex Australasia Pty Ltd
(AG2013/10094)

Building, metal and civil construction industries
DEPUTY PRESIDENT MCCARTHY	PERTH, 3 DECEMBER 2013

Application for variation of the Brookfield Multiplex Australasia Pty Ltd and CFMEU (WA) and Employees Enterprise Agreement 2011-2015.

[1] An application has been made by Brookfield Multiplex Australasia Pty Ltd for variation of the Brookfield Multiplex Australasia Pty Ltd and CFMEU (WA) and Employees Enterprise Agreement 2011-2015 (the Agreement) as follows:

[2] By inserting the words “except on the Brookfield Place Tower Two Project” in clause 3.1 after the word “Australia”.

[3] The variation is approved and will come into force on 3 December 2013.

[4] A consolidated copy of the Agreement is attached to this decision.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Brookfield Multiplex Australasia Pty Ltd sought to vary an enterprise agreement with the Construction, Forestry, Maritime, Mining and Energy Union (WA) and Employees. The application was made to the Fair Work Commission, which was asked to determine whether the application met the requirements for a certified agreement variation under the Fair Work Act 2009. The union opposed the application on several grounds, including that it did not meet the "better off overall test".

The legal issues the court was required to decide were whether the proposed changes were procedurally valid, whether the changes met the "better off overall test", and whether the changes were in accordance with the national workplace relations system. The court considered whether the application was made in good faith, whether the parties had genuinely attempted to negotiate the changes, and whether the changes would result in employees being better off overall.

The court found that the application was procedurally valid and that the parties had genuinely attempted to negotiate the changes. However, the court found that the changes did not meet the "better off overall test" as employees would be worse off overall as a result of the changes. The court also found that the changes were not in accordance with the national workplace relations system as they would undermine the existing enterprise agreement. The court therefore dismissed the application.

No orders were made as the application was dismissed.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established