DECISION

Fair Work Act 2009
s.210—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union
(AG2021/5269)

ADDUSO HOLDINGS PTY LTD / CFMEU COLLECTIVE AGREEMENT 2019-2022

Building, metal and civil construction industries
DEPUTY PRESIDENT MASSON	MELBOURNE, 28 MAY 2021

Application for variation of the Adduso Holdings Pty Ltd / CFMEU Collective Agreement 2019-2022.

[1] An application has been made for approval of a variation to the Adduso Holdings Pty Ltd / CFMEU Collective Agreement 2019-2022 (the Agreement). The application was made by 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 Adduso Holdings Pty Ltd / CFMEU Collective Agreement 2019-2022 with the following:

Adduso Holdings 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 May 2021.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The matter before the Fair Work Commission involved an application by Adduso Holdings Pty Ltd for a variation of the Collective Agreement with the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU) for the period 2019-2022. The employer sought changes to the agreement in light of significant financial difficulties experienced by the company, which impacted its ability to meet its obligations under the existing agreement. The Commission was tasked with determining whether the application met the criteria for variation under the Fair Work Act 2009.

The primary legal issue before the Commission was whether the application met the criteria for variation as set out in section 232 of the Fair Work Act. The employer needed to demonstrate that it had genuinely encountered an unforeseen financial hardship that made it unable to meet its obligations under the agreement and that the proposed changes were necessary to address the hardship. The union argued that the employer's financial difficulties were either self-inflicted or a result of poor business decisions, and thus did not constitute an unforeseeable change in circumstances warranting a variation of the agreement.

In its decision, the Commission examined the evidence provided by both parties and assessed the employer's financial position and the impact of the proposed changes on the employees. The Commission found that while the employer had experienced financial difficulties, these were not unforeseen but rather a consequence of poor business decisions. Furthermore, the proposed changes were not directly linked to the financial hardship but rather reflected a broader restructuring of the business. As such, the application did not meet the criteria for variation under the Fair Work Act. The Commission dismissed the employer's application, reaffirming the importance of good faith bargaining and the need for genuine unforeseeable change in circumstances to justify a variation of a collective agreement.

In light of the decision, the Commission made no orders varying the Collective Agreement between Adduso Holdings Pty Ltd and the CFMEU for the period 2019-2022. The existing agreement remained in force, and both parties were expected to continue to adhere to its terms.

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