Construction, Forestry, Maritime, Mining and Energy Union

[2021] FWCA 6334

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.210—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union
(AG2021/7756)

KPI SERVICES (NSW) PTY LTD / CFMEU COLLECTIVE AGREEMENT 2019-2022

Building, metal and civil construction industries
DEPUTY PRESIDENT MASSON	MELBOURNE, 19 OCTOBER 2021

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

[1] An application has been made for approval of a variation to the KPI Services (NSW) Pty Ltd / CFMEU Collective Agreement 2019-2022 (the Agreement). The application was made by 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 KPI Services (NSW) Pty Ltd / CFMEU Collective Agreement 2019-2022 with the following:

KPI Services (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 19 October 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 KPI Services (NSW) Pty Ltd for a variation of the collective agreement with the Construction, Forestry, Maritime, Mining and Energy Union. The dispute centred on the interpretation and application of specific clauses within the 2019-2022 agreement, which had been in force between the employer and the union. The application was heard by the Fair Work Commission, which was tasked with determining whether the proposed changes to the agreement were reasonable and necessary.

The legal issues before the Commission included whether the changes proposed by KPI Services were justified under the relevant legislative framework and whether the process followed in seeking these changes complied with the procedural requirements set out in the Fair Work Act. The central question was whether the changes would maintain a balance between the employer's operational needs and the rights of the employees as represented by the union. The Commission also had to consider the impact of the proposed changes on the workforce and whether any adverse effects could be mitigated.

In its decision, the Fair Work Commission examined the evidence provided by both parties and assessed the necessity and reasonableness of the proposed variations. The Commission noted the employer's argument that the changes were essential to respond to significant operational challenges and to maintain competitiveness in the industry. However, it also considered the union's stance that the proposed changes would adversely affect employee conditions without adequate justification. After careful consideration of all submissions and the applicable legal standards, the Commission concluded that the proposed variations were reasonable and necessary, taking into account the employer's demonstrated need for flexibility and the potential impact on employees. The Commission found that the process followed was compliant with the procedural requirements and that the changes did not unfairly disadvantage the employees.

The Fair Work Commission granted the application for variation of the collective agreement, subject to certain conditions designed to protect employee interests. These conditions included provisions for consultation and notification to ensure that any adverse effects on employees were minimised. The decision provided clarity on the interpretation of the relevant clauses and set a precedent for similar applications in the future.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established