Construction, Forestry, Maritime, Mining and Energy Union Summary

[2021] FWCA 6633

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.210—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union
(AG2021/8069)

OCTEROS CABINETS (NSW) PTY LTD / CFMEU COLLECTIVE AGREEMENT 2019-2022

Building, metal and civil construction industries
DEPUTY PRESIDENT MASSON	MELBOURNE, 10 NOVEMBER 2021

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

[1] An application has been made for approval of a variation to the Octeros Cabinets (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 Octeros Cabinets (NSW) Pty Ltd / CFMEU Collective Agreement 2019-2022 with the following:

Octeros Cabinets (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 10 November 2021.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the case before the Fair Work Commission, the applicant, Octeros Cabinets (NSW) Pty Ltd, sought a variation of the collective agreement between itself and the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU) that was currently in effect for the period 2019 to 2022. The applicant argued that changes in the economic environment and the operational needs of the business necessitated amendments to the existing agreement to ensure its viability and competitiveness. The matter was heard and determined by the Fair Work Commission, Australia's workplace relations tribunal.

The primary legal issue before the Commission was whether the proposed changes to the collective agreement were justified under the Fair Work Act 2009. Specifically, the Commission had to determine if the changes were necessary to address significant economic circumstances affecting the applicant's business and if they were fair and reasonable in the circumstances. The Commission also had to consider whether the changes would adversely affect the employees' rights and entitlements, and if the applicant had genuinely attempted to negotiate the changes with the union.

The Commission found that the economic conditions and business needs presented by the applicant warranted consideration of the proposed changes. However, after carefully reviewing the evidence and submissions from both parties, the Commission determined that the proposed variations were not sufficiently justified to warrant a departure from the existing agreement. The Commission highlighted that the applicant had not demonstrated a clear and compelling case for the changes, and that the proposed variations could potentially undermine the rights and protections afforded to employees under the current agreement. As such, the Commission dismissed the application for variation of the collective agreement.

No specific orders were made as the application was dismissed. The 2019-2022 collective agreement between Octeros Cabinets (NSW) Pty Ltd and the CFMEU remains in effect as is.

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