Construction, Forestry, Maritime, Mining and Energy Union

[2021] FWCA 6624

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.210—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union
(AG2021/8099)

TRESAMBER AUSTRALIA 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 Tresamber Australia Pty Ltd / CFMEU Collective Agreement 2019-2022

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

Tresamber Australia 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 matter before the Fair Work Commission involved an application by Tresamber Australia Pty Ltd for a variation of the collective agreement with the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU) for the period 2019-2022. The company sought changes that would affect the working conditions, including alterations to shift patterns, overtime provisions, and leave entitlements. The dispute centred on the company's claim that the existing agreement was no longer commercially viable due to changes in the business environment and market conditions.

The legal issues before the Commission were whether the proposed changes constituted a genuine variation under the Fair Work Act, and whether the changes were in the best interests of the employees given the impact on their working conditions. The Commission had to consider the principles of good faith bargaining and the preservation of essential job attributes. Additionally, the company needed to demonstrate that the changes were necessary and that the existing agreement was no longer sustainable.

The Commission carefully reviewed the evidence presented by both parties, assessing the economic viability of the business and the impact of the proposed changes on employees. It determined that the company had not adequately demonstrated that the changes were necessary for commercial viability. The proposed variations did not align with the principles of good faith bargaining, as the company had not shown that it had made a genuine effort to reach a mutually agreeable outcome with the union. The Commission also found that the changes would significantly disadvantage employees without a corresponding benefit to the company. Consequently, the application for variation was dismissed.

In light of the findings, the Commission upheld the existing collective agreement between Tresamber Australia Pty Ltd and the CFMEU for the specified period. The company was directed to continue to abide by the terms of the agreement until its expiry, without implementing the proposed changes. The decision underscored the importance of good faith negotiations and the protection of employee rights within the framework of industrial relations.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established