DECISION

Fair Work Act 2009
s.210—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union
(AG2021/5535)

ASPEC MASONRY SERVICES 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 ASPEC Masonry Services Pty Ltd / CFMEU Collective Agreement 2019-2022.

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

ASPEC Masonry Services 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 case before the Fair Work Commission involves an application by ASPEC Masonry Services Pty Ltd to vary certain provisions of the collective agreement between the company and the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU) for the period 2019-2022. The Commission was required to determine whether the proposed changes, which the company argued were necessary due to the economic impact of the COVID-19 pandemic, were reasonable and justifiable under the relevant legislation.

The legal issues that the Commission needed to address included whether the economic circumstances brought about by the pandemic constituted a "change in circumstances" that would justify the variation of the collective agreement. The Commission also had to consider whether the proposed changes were fair and reasonable, and whether they were necessary to maintain the economic viability of the company. Furthermore, the Commission had to determine whether the proposed changes were consistent with the principles of good faith bargaining and whether they would have a detrimental effect on the employees' conditions of employment.

In its decision, the Commission found that the economic impact of the pandemic did constitute a change in circumstances that justified the application for variation. The Commission noted that the company had provided evidence of a significant decline in its business and revenue, which had resulted in financial hardship for the company. The Commission also found that the proposed changes were reasonable and necessary to maintain the economic viability of the company, and that they were consistent with the principles of good faith bargaining. The Commission determined that the proposed changes were not detrimental to the employees' conditions of employment, as they provided for reasonable adjustments to the employees' hours of work and pay rates, which were necessary to enable the company to continue operating during the pandemic.

The Fair Work Commission granted the application for variation of the collective agreement, subject to certain conditions. The variation allows for changes to the employees' hours of work and pay rates, as well as changes to the company's shift patterns and rostering arrangements. The variation also includes provisions for the company to consult with the CFMEU in good faith regarding any future changes to the employees' conditions of employment.

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