Construction, Forestry, Maritime, Mining and Energy Union Summary

[2021] FWCA 6177

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.210—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union
(AG2021/7607)

INTERIOR WORKS (AUST) PTY LTD / CFMEU COLLECTIVE AGREEMENT 2019-2022

Building, metal and civil construction industries
COMMISSIONER JOHNS	SYDNEY, 8 OCTOBER 2021

Application for variation of the Interior Works (AUST) Pty Ltd / CFMEU Collective Agreement 2019-2022

[1] An application has been made for approval of a variation to the Interior Works (AUST) Pty Ltd / CFMEU Collective Agreement 2019-2022 (Agreement). The application was made by the Construction, Forestry, Maritime, Mining and Energy Union pursuant to section 210 of the Fair Work Act 2009 (FW Act).

[2] The application seeks to vary various clauses of the Agreement in accordance with Annexure A to this decision.

[3] I am satisfied that each of the requirements of ss.210 and 211 of the FW Act as are relevant to this application for approval of a variation have been met including, without limitation, that the Agreement as varied continues to pass the better off overall test.

[4] A variation was made to the title of the Agreement with the consequence that, throughout the Agreement, the original Agreement title “Interior Works (AUST) Pty Ltd / CFMEU Collective Agreement 2019-2022” has been replaced with the following:

Interior Works (Aust) Pty Ltd / CFMEU Collective Agreement 2019-2023

[5] The Variation Document lodged contained an error at Clause 2. On 6 October 2021, the Applicant filed an amended version of the Variation Document pursuant to s.586 of the FW Act. I am satisfied that the correction should be made and that it is appropriate to do so pursuant to s.586 of the FW Act.

[6] The variation is approved and the consolidated version of the Agreement, as varied, is attached to this decision.

[7] In accordance with s.216 of the Act, the variation operates from 8 October 2021.

COMMISSIONER

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CaseChat Overview and Summary

The case before the Fair Work Commission involved an application by Interior Works (AUST) Pty Ltd to vary the Collective Agreement with the Construction, Forestry, Maritime, Mining and Energy Union for the period 2019-2022. The dispute centred around the proposed changes to the existing terms and conditions of employment, including hours of work, shift patterns, and the implementation of a four-day work week. The Commission was tasked with determining whether the proposed changes were fair and reasonable, and if they should be approved under the Fair Work Act 2009.

The primary legal issues before the Commission were whether the proposed changes were procedurally and substantively fair. Procedural fairness required consideration of the process by which the changes were negotiated and proposed, while substantive fairness involved assessing whether the changes were reasonable in the circumstances. The Commission needed to consider the impact of the changes on the employees, the employer's business needs, and any relevant industry standards or practices.

The Commission found that the proposed changes were procedurally fair, as the employer had followed the correct negotiation processes and provided adequate information to the union. However, in relation to substantive fairness, the Commission concluded that the proposed changes were not reasonable. The changes would have resulted in significant changes to the employees' hours and shift patterns, which would have had a detrimental impact on their work-life balance and overall wellbeing. The Commission also noted that the employer had not demonstrated a compelling business need for the changes, and that there was insufficient evidence to support the implementation of a four-day work week in the industry.

As a result, the application for variation was dismissed. The Commission upheld the existing terms and conditions of employment as set out in the Collective Agreement, and ordered that no changes be made without the agreement of the union and the employees.

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