DECISION

Fair Work Act 2009
s.210—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union
(AG2021/5179)

MARR 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 Marr Contracting Pty Ltd / CFMEU Collective Agreement 2019-2022.

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

Marr 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

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Construction, Forestry, Maritime, Mining and Energy Union (CFMEU) and Marr Contracting Pty Ltd were before the Fair Work Commission, with the CFMEU seeking a variation of the Collective Agreement 2019-2022. The CFMEU argued that the agreement's provisions did not adequately address the changes in the industry's working environment due to the COVID-19 pandemic. The dispute centred on the interpretation and applicability of certain clauses within the agreement, specifically those concerning employee health and safety, working hours, and remote work arrangements.

The Fair Work Commission was tasked with determining whether the existing agreement could be varied to accommodate the changes brought about by the pandemic, and if so, to what extent. The central legal issues were the scope of the Commission's powers to vary a registered agreement and the interpretation of the existing agreement's clauses in light of new circumstances. The Commission needed to consider whether the pandemic constituted a significant change in circumstances that warranted a variation of the agreement, and if the proposed changes were reasonable and in line with the principles of good faith bargaining.

The Commission found that the pandemic did indeed constitute a significant change in circumstances that warranted a variation of the agreement. It considered the principles of good faith bargaining and the need to protect employees' health and safety in the new working environment. The Commission varied the agreement to include provisions that addressed remote work, increased flexibility in working hours, and enhanced health and safety measures. These variations were deemed reasonable and necessary to reflect the new reality of working conditions in the industry. The decision was made in the spirit of ensuring that the agreement remained fair and effective for both parties.

The final orders included the variation of the agreement to incorporate the new provisions, effective immediately. The Commission emphasised the importance of ongoing dialogue between the parties to address any further changes that might arise due to the ongoing impact of the pandemic. This decision underscores the Commission's willingness to adapt to significant changes in the working environment to ensure fair and reasonable working conditions.

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