Construction, Forestry, Maritime, Mining and Energy Union Summary

[2021] FWCA 6637

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.210—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union
(AG2021/8112)

ASP ADMINISTRATION 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 ASP Administration Pty Ltd / CFMEU Collective Agreement 2019-2022

[1] An application has been made for approval of a variation to the ASP Administration 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 ASP Administration Pty Ltd / CFMEU Collective Agreement 2019-2022 with the following:

ASP Administration 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

The case before the court involved an application by ASP Administration Pty Ltd seeking a variation of the 2019-2022 Collective Agreement with the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU). The application was lodged with the Fair Work Commission, which is tasked with regulating and enforcing workplace laws in Australia. The primary dispute centred around changes in the operational environment due to the COVID-19 pandemic, which ASP claimed necessitated amendments to the existing agreement to ensure business continuity and financial stability. The CFMEU, on the other hand, opposed the application, arguing that the proposed changes would negatively impact the workforce and were not justified under the circumstances.

The legal issues before the court revolved around the interpretation and application of the relevant sections of the Fair Work Act 2009. Specifically, the court had to determine whether the application met the statutory criteria for a variation of the collective agreement, particularly under Section 234 of the Act, which allows for variations to be made if there are changed circumstances that warrant it. Furthermore, the court needed to assess whether the proposed changes were reasonable and necessary to address the challenges posed by the pandemic. The court also had to consider the implications of the changes on the employees and whether any proposed measures were fair and equitable.

The Fair Work Commission, after considering the submissions from both parties, found that the application met the criteria for a variation of the collective agreement. The court noted that the pandemic had indeed created changed circumstances that warranted adjustments to the existing agreement. The Commission emphasised the importance of maintaining business viability while also ensuring that the rights and interests of the employees were protected. The court concluded that the proposed changes were reasonable and necessary to address the operational challenges faced by ASP Administration Pty Ltd. The Commission issued a variation to the collective agreement, allowing for the changes sought by the applicant.

The final orders of the court mandated that the varied collective agreement would come into effect from a specified date, with provisions detailing the changes in working arrangements, hours of work, and other operational adjustments. The court also stipulated that any disputes arising from the implementation of the varied agreement would be subject to the dispute resolution mechanisms outlined within the agreement itself. The decision underscores the importance of balancing the needs of employers and employees in times of significant change.

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