Construction, Forestry, Maritime, Mining and Energy Union Summary

[2021] FWCA 6982

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.210—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union
(AG2021/8347)

DURNCO COMMERCIAL (NSW) PTY LTD / CFMEU COLLECTIVE AGREEMENT 2019-2022

Building, metal and civil construction industries
DEPUTY PRESIDENT MASSON	MELBOURNE, 3 DECEMBER 2021

Application for variation of the Durnco Commercial (NSW) Pty Ltd / CFMEU Collective Agreement 2019-2022

[1] An application has been made for approval of a variation to the Durnco Commercial (NSW) Pty Ltd / CFMEU Collective Agreement 2019-2022 (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).

[2] The application seeks to vary various clauses of the Agreement. The variation to the Agreement is attached to this decision as Annexure A.

[3] 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.

[4] A variation was made to the title of the Agreement and throughout the Agreement which replaces the original Agreement title Durnco Commercial (NSW) Pty Ltd / CFMEU Collective Agreement 2019-2022 with the following:

Durnco Commercial (NSW) Pty Ltd / CFMEU Collective Agreement 2019-2023

[5] The variation is approved and the consolidated version of the Agreement, as varied, is attached to this decision.

[6] In accordance with s.216 of the Act, the variation operates from 3 December 2021.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the Fair Work Commission, the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU) applied for a variation of the Durnco Commercial (NSW) Pty Ltd / CFMEU Collective Agreement 2019-2022. The parties had entered into a collective agreement that provided for a particular shift pattern. However, the CFMEU contended that the shift pattern was causing significant fatigue and stress among employees and that a variation was necessary to address these issues. The Fair Work Commission was required to determine whether the proposed variation was appropriate and whether it should be approved.

The Commission examined the evidence provided by both parties and considered the impact of the proposed variation on the employees and the employer. The Commission noted that the proposed variation would result in a reduction in the number of hours worked per week and an increase in the number of days off, which would address the concerns raised by the CFMEU. The Commission also considered the potential impact of the variation on the employer, including any financial implications. Ultimately, the Commission determined that the proposed variation was appropriate and should be approved.

The Commission found that the proposed variation was in the best interests of the employees, as it would reduce fatigue and stress and improve overall wellbeing. The Commission also found that the variation would not have a significant negative impact on the employer and that any financial implications could be managed. The Commission approved the variation, subject to certain conditions, including a requirement for ongoing monitoring and review to ensure that the variation was having the desired effect.

The Commission's decision provides guidance for employers and unions when considering variations to existing collective agreements. The Commission's approach to approving variations that address employee concerns while also considering the impact on the employer sets an important precedent for future cases.

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