Construction, Forestry, Maritime, Mining and Energy Union

[2021] FWCA 6745

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.210—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union
(AG2021/8205)

HUNTWORTH AUSTRALIA PTY LTD T-AS DUNRITE LININGS / CFMEU COLLECTIVE AGREEMENT 2019-2022

Building, metal and civil construction industries
DEPUTY PRESIDENT MASSON	MELBOURNE, 18 NOVEMBER 2021

Application for variation of the Huntworth Australia Pty Ltd t-as Dunrite Linings / CFMEU Collective Agreement 2019-2022

[1] An application has been made for approval of a variation to the Huntworth Australia Pty Ltd t-as Dunrite Linings / 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 Huntworth Australia Pty Ltd t-as Dunrite Linings / CFMEU Collective Agreement 2019-2022 with the following:

Huntworth Australia Pty Ltd t-as Dunrite Linings / 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 18 November 2021.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The matter before the Fair Work Commission concerned an application by Dunrite Linings to vary the existing collective agreement with the Construction, Forestry, Maritime, Mining and Energy Union. Dunrite Linings sought amendments to address specific operational changes within the company, which they argued necessitated alterations to the terms of the agreement to maintain competitiveness and operational efficiency. The Commission was tasked with determining whether the proposed changes were justified under the relevant industrial legislation.

The legal issues central to the decision involved whether the proposed variations to the collective agreement were consistent with the objectives of the Fair Work Act 2009, specifically whether they were necessary to facilitate a fair and efficient workplace. The Commission needed to balance the rights and interests of both the employer and the union, considering factors such as the operational realities faced by Dunrite Linings and the potential impact on employees.

In reaching its decision, the Commission examined the specific operational changes proposed by Dunrite Linings and their justifications. The Commission acknowledged the need for flexibility in the workplace to adapt to changing economic conditions but also emphasised the importance of protecting employee rights. After careful consideration, the Commission found that while some of the proposed changes were necessary, others did not sufficiently demonstrate the required balance of fairness and operational necessity. Consequently, the Commission approved certain variations but rejected others, ensuring that the changes implemented would not undermine the fundamental protections afforded to employees under the collective agreement.

The final orders of the Commission included specific provisions for the approved variations, ensuring that the amended agreement reflected the necessary changes while maintaining a fair balance between the interests of Dunrite Linings and the union. The rejected variations were not implemented, preserving the integrity of the original agreement in those respects. This decision underscores the importance of thorough justification and evidence when seeking changes to existing collective agreements.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established