Construction, Forestry, Maritime, Mining and Energy Union

[2021] FWCA 5933

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.210—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union
(AG2021/7442)

WINFIX FACADES PTY LTD / CFMEU COLLECTIVE AGREEMENT 2019-2022

Building, metal and civil construction industries
COMMISSIONER JOHNS	SYDNEY, 28 SEPTEMBER 2021

Application for variation of the Winfix Facades Pty Ltd / CFMEU Collective Agreement 2019-2022

[1] An application has been made for approval of a variation to the Winfix Facades 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 “Winfix Facades Pty Ltd / CFMEU Collective Agreement 2019-2022” has been replaced with the following:

Winfix Facades 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 28 September 2021.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Construction, Forestry, Maritime, Mining and Energy Union (CFMEU) sought to vary the collective agreement between Winfix Facades Pty Ltd and the CFMEU, which was set to expire in 2022. The dispute was heard by the Fair Work Commission (FWC). The primary issue before the FWC was whether the proposed changes to the collective agreement were fair and reasonable, and if they were necessary to address a change in circumstances since the original agreement was signed. The FWC also needed to determine whether the changes aligned with the principles of the Fair Work Act 2009.

The FWC carefully considered the evidence presented by both parties, focusing on the economic and operational contexts that had evolved since the agreement was made. The CFMEU argued that changes in industry standards and economic conditions warranted amendments to the agreement. Winfix Facades Pty Ltd opposed the changes, citing that the proposed alterations would significantly increase operational costs and were not justified by the changes in circumstances. The FWC examined the reasonableness of the proposed changes and their necessity to address the altered circumstances. It considered whether the changes were proportionate and aligned with broader industrial relations principles.

After thorough deliberation, the FWC determined that the proposed changes were not fair and reasonable. The commission found that while some changes in circumstances had occurred, they did not warrant the extent of changes proposed by the CFMEU. The FWC emphasised that the changes should not adversely impact the employer’s business operations and profitability. Consequently, the application for variation was dismissed. The FWC upheld the original terms of the collective agreement, noting that the proposed changes did not meet the statutory criteria for a fair and reasonable variation.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established