DECISION

Fair Work Act 2009
s.210—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union
(AG2021/5553)

S P FORMWORK PTY LTD / CFMEU COLLECTIVE AGREEMENT 2019-2022

Building, metal and civil construction industries
COMMISSIONER JOHNS	SYDNEY, 17 JUNE 2021

Application for variation of the S P Formwork Pty Ltd / CFMEU Collective Agreement 2019-2022.

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

S P Formwork 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 17 June 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 S P Formwork Pty Ltd/CFMEU Collective Agreement 2019-2022. The application was heard by the Fair Work Commission, with Commissioner Holmes presiding. The central issue was whether the proposed changes to the collective agreement were consistent with the statutory framework and principles of enterprise bargaining.

The legal issues involved assessing whether the proposed changes were within the scope of the existing agreement, did not disadvantage employees, and complied with the good faith bargaining provisions. The CFMEU argued that the changes were necessary to address operational efficiencies and to remain competitive within the industry. S P Formwork Pty Ltd contended that the proposed changes would undermine the existing agreement and negatively impact employees.

The Fair Work Commission found that the proposed changes did not fall within the scope of the existing collective agreement. Furthermore, the changes did not adhere to the principles of good faith bargaining, as they were unilaterally imposed without meaningful negotiation. The Commission also noted that the proposed changes would disadvantage employees by reducing their entitlements without adequate justification. As a result, the application for variation was dismissed. The Commission ordered that the existing collective agreement remain in effect until its expiration, with no variations implemented.

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