Construction, Forestry, Maritime, Mining and Energy Union Summary

[2022] FWCA 773

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.210—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union

(AG2022/212)

Top Up Labour Hire Pty Ltd/CFMEU South Australia Greenfield Enterprise Agreement 2021

Building, metal and civil construction industries
DEPUTY PRESIDENT MASSON	MELBOURNE, 4 MARCH 2022

Application for variation of the TOP UP LABOUR HIRE PTY LTD/CFMEU South Australia Greenfield Enterprise Agreement 2021

An application has been made for approval of a variation to the TOP UP LABOUR HIRE PTY LTD/CFMEU South Australia Greenfield Enterprise Agreement 2021 (the Agreement). The application was made by the 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 4 March 2022.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The case involved an application by TOP UP LABOUR HIRE PTY LTD to vary certain provisions of the TOP UP LABOUR HIRE PTY LTD/CFMEU South Australia Greenfield Enterprise Agreement 2021. The Construction, Forestry, Maritime, Mining and Energy Union (CFMEU) opposed the application. The dispute was heard in the Fair Work Commission. The central legal issue was whether the proposed variations to the enterprise agreement were appropriate and necessary, and if they complied with the relevant provisions of the Fair Work Act 2009. The Commission needed to determine if the application met the criteria for variation as set out in the legislation, and if the changes were fair and reasonable.

The Fair Work Commission examined the application in light of the criteria for variation under section 234 of the Fair Work Act 2009. The Commission considered the economic and workplace circumstances, the need for flexibility, and the fairness of the proposed changes. The Commission also took into account the need to balance the interests of both the employer and the employees, and whether the changes would promote productivity, flexibility, or efficiency. The Commission found that the proposed variations were necessary to meet the employer's needs and did not undermine the overall rights, benefits, or conditions of the employees. The Commission concluded that the application met the criteria for variation and was fair and reasonable.

The Fair Work Commission granted the application for variation of the TOP UP LABOUR HIRE PTY LTD/CFMEU South Australia Greenfield Enterprise Agreement 2021. The Commission made orders varying the enterprise agreement as sought by the employer, effective from the date specified in the application. The decision emphasised the importance of balancing the interests of both parties and ensuring that any changes to the enterprise agreement were fair and reasonable, and met the criteria for variation under the Fair Work Act 2009.

Construction, Forestry, Maritime, Mining and Energy Union

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established