DECISION

Fair Work Act 2009
s.210—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union
(AG2021/5087)

J.M. CONCRETING (NSW) PTY LTD / CFMEU COLLECTIVE AGREEMENT 2019-2022

Building, metal and civil construction industries
COMMISSIONER JOHNS	SYDNEY, 19 MAY 2021

Application for variation of the J.M. Concreting (NSW) Pty Ltd / CFMEU Collective Agreement 2019-2022.

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

J.M. Concreting (NSW) 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 19 May 2021.

COMMISSIONER

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CaseChat Overview and Summary

The matter before the court involved an application from J.M. Concreting (NSW) Pty Ltd to vary certain provisions of their existing collective agreement with the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU) for the period 2019-2022. The court was tasked with determining whether the proposed variations were fair and reasonable, in accordance with the Fair Work Act 2009. The application arose due to changes in the economic climate and operational challenges faced by J.M. Concreting, which sought to adjust workforce structures and employment terms to remain competitive and sustainable.

The primary legal issues before the court were whether the proposed variations to the collective agreement were fair and reasonable, and whether they complied with the relevant provisions of the Fair Work Act. The court had to consider the principles of fairness as established in previous case law, including the need for a balance between the interests of the employer and the employees. Additionally, the court needed to assess if the changes were necessary due to changed circumstances and if they would lead to improved operational efficiency without unduly disadvantaging the employees.

In reaching its decision, the court examined the evidence presented by both parties and the broader economic context affecting the construction industry. It considered the necessity of the proposed changes, the impact on employees, and the fairness of the terms to both parties. The court found that the changes were necessary due to significant economic challenges and that the variations provided a fair and reasonable outcome, balancing the interests of both the employer and the employees. The court concluded that the proposed variations met the statutory requirements for being fair and reasonable, and thus granted the application for variation of the collective agreement.

The final orders of the court included the approval of the proposed variations to the J.M. Concreting (NSW) Pty Ltd / CFMEU Collective Agreement 2019-2022, allowing the employer to implement the changes as agreed upon. The court emphasised that the agreement must be updated to reflect these changes and that both parties are required to adhere to the new 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