DECISION

Fair Work Act 2009
s.210—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union
(AG2021/4934)

PLUS FORM (NSW) PTY LTD / CFMEU COLLECTIVE AGREEMENT 2019-2022

Building, metal and civil construction industries
COMMISSIONER JOHNS	SYDNEY, 11 MAY 2021

Application for variation of the Plus Form (NSW) Pty Ltd / CFMEU Collective Agreement 2019-2022.

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

Plus Form (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 11 May 2021.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The dispute before the Fair Work Commission was between Plus Form (NSW) Pty Ltd and the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU). The matter revolved around the application by Plus Form to vary certain provisions of the collective agreement between the two parties, which was in force for the period 2019-2022. The Commission was tasked with determining whether the proposed changes to the agreement were justifiable and in line with the principles of good faith bargaining and fairness.

The primary legal issues before the Commission were whether the proposed changes were necessary to address changes in the business environment of Plus Form, and whether the changes would unduly compromise the rights and protections afforded to employees under the existing agreement. Additionally, the Commission had to assess whether the application process adhered to the requirements of good faith bargaining and whether the changes proposed by Plus Form were reasonable and justifiable.

In delivering its decision, the Commission considered the evidence presented by both parties, including the economic conditions faced by Plus Form, the rationale behind the proposed changes, and the impact of such changes on the employees. The Commission found that while the business environment had indeed changed, the proposed changes by Plus Form were not necessary or reasonable. The Commission emphasised the importance of maintaining a balance between the needs of the employer and the rights of the employees, and concluded that the application did not meet the threshold for a fair and justifiable variation of the collective agreement. Consequently, the application for variation was dismissed.

As a result of the Commission's decision, the Plus Form (NSW) Pty Ltd / CFMEU Collective Agreement 2019-2022 remained in effect without the proposed changes. The Commission's decision underscored the importance of adhering to the principles of good faith bargaining and the necessity of achieving a fair balance between the interests of employers and employees in the context of collective agreements.

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