DECISION

Fair Work Act 2009
s.210—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union
(AG2021/5121)

NASS EXCAVATIONS (AUSTRALIA) PTY LTD / CFMEU COLLECTIVE AGREEMENT 2019-2022

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

Application for variation of the Nass Excavations (Australia) Pty Ltd / CFMEU Collective Agreement 2019-2022.

[1] An application has been made for approval of a variation to the Nass Excavations (Australia) 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 “Nass Excavations (Australia) Pty Ltd / CFMEU Collective Agreement 2019-2022” has been replaced with the following:

Nass Excavations (Australia) 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

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the Fair Work Commission, Nass Excavations (Australia) Pty Ltd applied for a variation of the 2019-2022 Collective Agreement with the Construction, Forestry, Maritime, Mining and Energy Union. The company sought amendments to the agreement to address changing economic conditions and operational requirements. The union contested the application, asserting that the proposed changes would negatively impact employees' rights and conditions.

The legal issues before the Commission centred on the process and validity of the proposed variations, particularly whether the changes were necessary and reasonable under the Fair Work Act 2009. The Commission had to determine if the application satisfied the legal criteria for a variation and if the proposed changes were justifiable in light of the economic and operational context provided by the company.

The Commission found that the company had adequately demonstrated the necessity for the proposed changes, given the economic downturn and increased operational costs. The Commission accepted that the variations were reasonable and necessary to maintain the company's financial viability while ensuring that the changes did not unjustifiably diminish employees' rights and conditions. The application was approved with conditions to protect employees from undue hardship.

The final orders included the approved variations to the Collective Agreement, with specific provisions to safeguard employee entitlements and ensure that the changes were implemented in a manner that balanced the interests of both parties. The Commission also mandated ongoing consultation between the company and the union to review the impact of the variations and to make any further adjustments as necessary.

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