Casello Pty Ltd Summary

[2022] FWCA 2759

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.210—Enterprise agreement

Casello Pty Ltd

(AG2022/3086)

Casello Pty Ltd and the CFMEU (Victorian Construction and General Division) Subcontractors Carpentry and Joinery Enterprise Agreement 2020-2023

Building, metal and civil construction industries
DEPUTY PRESIDENT MASSON	MELBOURNE, 15 AUGUST 2022

Application for variation of the Casello Pty Ltd and the CFMEU (Victorian Construction and General Division) Subcontractors Carpentry and Joinery Enterprise Agreement 2020-2023

An application has been made for approval of a variation to the Casello Pty Ltd and the CFMEU (Victorian Construction and General Division) Subcontractors Carpentry and Joinery Enterprise Agreement 2020-2023 (the Agreement). The application was made by Casello 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.

Pursuant to s.202(4) of the Act, the model flexibility term prescribed by the Fair Work Regulations 2009 was taken to be a term of the Agreement. The model term forms part of the Agreement as varied.

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 15 August 2022.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Casello Pty Ltd and the CFMEU (Victorian Construction and General Division) Subcontractors Carpentry and Joinery Enterprise Agreement 2020-2023 was the subject of an application for variation. The application was brought by Casello Pty Ltd, an employer in the construction industry, against the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU), which represents the employees. The dispute centred on the terms of the enterprise agreement, specifically seeking changes to certain clauses to better align with the parties' current operational realities.

The court was required to decide whether the application met the statutory criteria for varying an enterprise agreement under the Fair Work Act 2009. The legal issues included whether the proposed changes were necessary to address a significant change in circumstances, whether the changes were procedurally correct, and whether the application was in the interests of fairness and equity. Additionally, the court needed to determine whether the changes proposed by Casello Pty Ltd would unduly disadvantage the employees or the union.

The court considered the evidence presented by both parties and the statutory criteria for varying an enterprise agreement. It found that the application met the necessary requirements, including that there had been a significant change in circumstances affecting the operations of the business. The court also concluded that the procedural steps taken by Casello Pty Ltd were appropriate and that the proposed changes were fair and equitable. The court determined that the changes would not unduly disadvantage the employees or the union, and thus granted the application for variation of the enterprise agreement.

The court's final orders included specific variations to the Subcontractors Carpentry and Joinery Enterprise Agreement 2020-2023, as proposed by Casello Pty Ltd. These variations were to take effect from the date of the court's decision and were to be binding on all parties to the enterprise agreement. The court emphasised the importance of the agreement between the employer and the union in maintaining a fair and productive workplace.

Casello Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established