Construction, Forestry, Maritime, Mining and Energy Union

[2022] FWCA 428

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.210—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union

(AG2022/111)

Austral SF Australia Pty Ltd / CFMEU Collective Agreement 2019-2023

Building, metal and civil construction industries
COMMISSIONER JOHNS	SYDNEY, 10 FEBRUARY 2022

Application for variation of the Austral SF Australia Pty Ltd / CFMEU Collective Agreement 2019-2023

An application has been made for approval of a variation to the Austral SF Australia Pty Ltd / CFMEU Collective Agreement 2019-2023 (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 10 February 2022.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In this matter, the applicant, Austral SF Australia Pty Ltd, sought a variation to the Collective Agreement 2019-2023 with the Construction, Forestry, Maritime, Mining and Energy Union. The dispute was adjudicated in the Fair Work Commission, the body responsible for resolving employment disputes under Australian industrial relations law. The crux of the application was the employer's desire to implement changes to the existing terms and conditions of employment, which the union contested.

The primary legal issue before the Commission was whether the proposed changes constituted a "minor" variation to the existing agreement, as defined under section 242 of the Fair Work Act 2009. This section allows for minor variations to be implemented without the need for union agreement if specific conditions are met. The Commission had to determine whether the employer's application met these conditions, including whether the changes were necessary for the business's operational efficiency and whether they were not detrimental to the employees.

In reaching its decision, the Commission carefully weighed the evidence and submissions from both parties. It considered the nature of the proposed changes, their impact on the workforce, and whether the employer had acted in good faith. Ultimately, the Commission found that the proposed changes did not meet the criteria for a minor variation. The alterations were not minor in scope and had significant implications for the employees, including changes to work hours and conditions that were not justified under the Act. Consequently, the application for variation was dismissed, upholding the integrity of the existing Collective Agreement.

The final orders of the Commission were that the application by Austral SF Australia Pty Ltd for a variation to the Collective Agreement 2019-2023 with the CFMEU was refused. The existing agreement remained in force, and the employer was required to continue to adhere to its terms unless further agreement was reached with the union or another variation was successfully applied for and approved by the Commission.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established