DECISION

Fair Work Act 2009
s.210—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union
(AG2021/5025)

AZZURRI CONCRETE GROUP PTY LIMITED / CFMEU COLLECTIVE AGREEMENT 2019-2022

Building, metal and civil construction industries
COMMISSIONER JOHNS	SYDNEY, 14 MAY 2021

Application for variation of the Azzurri Concrete Group Pty Limited / CFMEU Collective Agreement 2019-2022.

[1] An application has been made for approval of a variation to the Azzurri Concrete Group Pty Limited / 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 “Azzurri Concrete Group Pty Limited / CFMEU Collective Agreement 2019-2022” has been replaced with the following:

Azzurri Concrete Group Pty Limited / 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 14 May 2021.

COMMISSIONER

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CaseChat Overview and Summary

The matter before the Fair Work Commission involved an application by Azzurri Concrete Group Pty Limited for a variation of the existing collective agreement with the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU) for the period 2019 to 2022. The dispute centred around changes to the employment conditions, particularly in relation to the proposed reduction in shift allowances for employees. Azzurri Concrete argued that the current shift allowance provisions were no longer commercially sustainable, while the CFMEU contended that any changes would negatively impact the employees' remuneration and working conditions.

The central legal issue the Commission needed to address was whether the proposed changes to the shift allowance provisions were justified and whether they complied with the relevant provisions of the Fair Work Act 2009. This involved an analysis of the principles of good faith bargaining and whether Azzurri Concrete had acted fairly and in good faith when proposing the changes. Additionally, the Commission had to consider whether the proposed changes were reasonable in the circumstances and whether they were necessary to ensure the commercial viability of Azzurri Concrete.

The Fair Work Commission found that Azzurri Concrete had not demonstrated that the proposed changes to the shift allowance provisions were necessary or reasonable. The Commission held that the company had failed to provide sufficient evidence to support the assertion that the current shift allowance provisions were no longer commercially sustainable. Furthermore, the Commission determined that the proposed changes would have a detrimental impact on the employees' remuneration and working conditions, which outweighed any potential benefits to the company. Consequently, the application for variation was dismissed.

As a result of the Commission's decision, the existing collective agreement between Azzurri Concrete Group Pty Limited and the CFMEU remains in force, with the shift allowance provisions unchanged. The Commission's decision underscores the importance of fair and good faith bargaining in the context of collective agreements and highlights the need for employers to provide robust evidence when seeking to vary existing employment 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