DECISION

Fair Work Act 2009
s.210—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union
(AG2021/5202)

SYDNEY CIVIC CONTRACTING PTY LTD / CFMEU COLLECTIVE AGREEMENT 2019-2022

Building, metal and civil construction industries
COMMISSIONER JOHNS	SYDNEY, 20 MAY 2021

Application for variation of the Sydney Civic Contracting Pty Ltd / CFMEU Collective Agreement 2019-2022.

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

Sydney Civic Contracting 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 20 May 2021.

COMMISSIONER

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CaseChat Overview and Summary

The matter before the Fair Work Commission involved an application by Sydney Civic Contracting Pty Ltd to vary the collective agreement between the company and the Construction, Forestry, Maritime, Mining and Energy Union. The dispute centred around proposed changes to the agreement's terms, which the union contested, arguing they would adversely affect the employees' working conditions and entitlements. The application was heard by the Fair Work Commission, which had jurisdiction under the Fair Work Act 2009 to hear and determine applications for variations of enterprise agreements.

The legal issues the Commission was required to resolve included whether the proposed changes constituted a genuine attempt to improve the business efficiency of the company, whether the changes were necessary and whether the changes would have a detrimental impact on the employees. The Commission also needed to determine if the company had met its obligations under the Fair Work Act to bargain in good faith with the union. These issues required a careful analysis of the evidence presented by both parties, including expert testimony and submissions on the impact of the proposed changes.

In its decision, the Commission found that the proposed changes did not meet the criteria for a genuine attempt to improve business efficiency. The evidence showed that the changes were primarily motivated by a desire to reduce costs rather than improve operational efficiency. The Commission also found that the changes would have a detrimental impact on the employees, particularly in relation to their entitlements and working conditions. Given these findings, the Commission concluded that the company had not met its obligations to bargain in good faith and dismissed the application for variation of the collective agreement. The existing agreement remained in force, and the employees' entitlements and conditions were preserved as per the original terms.

As a result of the Commission's decision, the company was required to continue to adhere to the terms of the existing collective agreement. The union's objections to the proposed changes were upheld, ensuring that the employees' rights and conditions were not adversely affected. The decision reinforced the importance of genuine bargaining and the need for employers to consider the impact of proposed changes on their employees.

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