DECISION

Fair Work Act 2009
s.210—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union
(AG2021/5658)

KONTRO GROUP PTY LTD/ CFMEU COLLECTIVE AGREEMENT 2019-2022

Building, metal and civil construction industries
DEPUTY PRESIDENT MASSON	MELBOURNE, 24 JUNE 2021

Application for variation of the Kontro Group Pty Ltd/ CFMEU Collective Agreement 2019-2022.

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

Kontro Group 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 24 June 2021.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The matter before the court involved an application by the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU) to vary a collective agreement between itself and Kontro Group Pty Ltd. The court was tasked with determining whether the requested variations to the existing agreement, which was set to run from 2019 to 2022, were justified under the applicable legislative framework. The legal issues before the court centred on whether the proposed changes met the criteria for variation as stipulated under the Fair Work Act 2009 and whether the process followed by the CFMEU in seeking these changes was procedurally fair.

The court examined the specific provisions of the Fair Work Act that govern the variation of collective agreements. It considered whether the changes proposed by the CFMEU were necessary to address issues that could not have been reasonably anticipated at the time of the original agreement. Furthermore, the court assessed whether the proposed changes were consistent with the principles of good faith bargaining and whether the CFMEU had adequately justified the need for the variations. The court also evaluated the procedural fairness of the CFMEU's application, ensuring that all relevant parties had the opportunity to be heard and that the decision-making process was transparent and unbiased.

After thorough analysis, the court found that the proposed variations did not meet the necessary criteria for alteration under the Fair Work Act. The court concluded that the changes were not sufficiently justified as they did not address unforeseen circumstances that could not have been reasonably anticipated when the agreement was originally entered into. Additionally, the court determined that the process followed by the CFMEU did not adhere to the principles of good faith bargaining, as it failed to provide adequate opportunity for the employer to respond to the proposed changes. Consequently, the application for variation was dismissed.

The final orders of the court were that the application by the CFMEU to vary the collective agreement with Kontro Group Pty Ltd be dismissed. The court did not grant the requested variations and upheld the original terms of the agreement as they stood. The decision emphasised the importance of adhering to the legislative criteria and procedural fairness in any future applications for variations of collective agreements.

Construction, Forestry, Maritime, Mining and Energy Union

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established