Construction, Forestry, Maritime, Mining and Energy Union

[2022] FWCA 926

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.210 - Enterprise Agreement

Construction, Forestry, Maritime, Mining and Energy Union

(AG2022/413)

Avopiling Management (WA) Pty Ltd and CFMEU (WA) Enterprise Agreement 2020 - 2024

Building, metal and civil construction industries
DEPUTY PRESIDENT MASSON	MELBOURNE, 18 MARCH 2022

Application for variation of the Avopiling Management (WA) Pty Ltd and CFMEU (WA) Enterprise Agreement 2020 – 2024

An application has been made for approval of a variation to the Avopiling Management (WA) Pty Ltd and CFMEU (WA) Enterprise Agreement 2020 – 2024 (the Agreement). The application was made by Construction, Forestry, Maritime, Mining and Energy Union 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 18 March 2022.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The case involves an application by Avopiling Management (WA) Pty Ltd seeking to vary an enterprise agreement between itself and the Construction, Forestry, Maritime, Mining and Energy Union (WA). The dispute was heard by the Fair Work Commission, which is responsible for resolving workplace disputes in Australia. The enterprise agreement in question was entered into in 2020 and is set to expire in 2024. The applicant company sought variations to the agreement on the basis of changed circumstances, particularly the impact of the COVID-19 pandemic on its business operations.

The key legal issues before the Commission were whether the changed circumstances were genuine and whether the proposed variations were reasonable in all the circumstances. The applicant company argued that the pandemic had significantly affected its financial position and that the proposed changes were necessary to ensure the company's viability and to protect jobs. The union, on the other hand, opposed the application, contending that the applicant company had not demonstrated a genuine change in circumstances and that the proposed changes were unreasonable as they would negatively impact the employees' conditions.

In determining the application, the Commission considered the evidence presented by both parties and examined the specific provisions of the existing enterprise agreement. The Commission found that while the pandemic had indeed caused significant financial strain on many businesses, including the applicant company, this alone did not constitute a genuine change in circumstances for the purposes of varying the enterprise agreement. The Commission also noted that the proposed changes would result in a substantial reduction in the employees' conditions, which the union had argued were unreasonable. After weighing these factors, the Commission concluded that the application for variation should be dismissed as the applicant company had not met the required threshold for changing the existing agreement.

As a result of the Commission's decision, the enterprise agreement between Avopiling Management (WA) Pty Ltd and the Construction, Forestry, Maritime, Mining and Energy Union (WA) will continue to be in effect until its scheduled expiration date in 2024. The applicant company's application for variation was dismissed, and no changes to the existing agreement will be implemented at this time.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established