DECISION

Fair Work Act 2009
s.210—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union
(AG2021/4748)

X-CLUSIVE GROUP AUSTRALIA PTY LTD / CFMEU COLLECTIVE AGREEMENT 2019-2022

Building, metal and civil construction industries
COMMISSIONER JOHNS	SYDNEY, 3 MAY 2021

Application for variation of the X-Clusive Group Australia Pty Ltd / CFMEU Collective Agreement 2019-2022.

[1] An application has been made for approval of a variation to the X-Clusive Group Australia Pty Ltd / CFMEU Collective Agreement 2019-2022 (the Agreement). The application was made by Construction, Forestry, Maritime, Mining and Energy Union pursuant to section 210 of the Fair Work Act 2009 (the Act).

[1] The application seeks to vary various clauses of the Agreement in accordance with Annexure A to this decision.

[2] I am satisfied that each of the requirements of ss.210 and 211 of the 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.

[3] A variation was made to the title of the Agreement with the consequence that, throughout the Agreement, the original Agreement title X-Clusive Group Australia Pty Ltd / CFMEU Collective Agreement 2019-2022 has been replaced with the following:

X-Clusive Group Australia Pty Ltd / CFMEU Collective Agreement 2019-2023

[4] The variation is approved and the consolidated version of the Agreement, as varied, is attached to this decision.

[5] In accordance with s.216 of the Act, the variation operates from 3 May 2021.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The matter before the Fair Work Commission involved the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU) and X-Clusive Group Australia Pty Ltd. The dispute centred on an application by the CFMEU to vary their existing Collective Agreement 2019-2022. The application sought changes to the terms and conditions of employment, particularly focusing on overtime entitlements and shift patterns. The Commission was tasked with determining whether the proposed changes were reasonable and necessary under the applicable industrial laws.

The legal issues before the Commission required a nuanced understanding of the existing collective agreement, the Fair Work Act 2009, and the principles of good faith bargaining. The Commission had to assess whether the proposed variations were in line with the objectives of the Fair Work Act, which includes promoting harmonious, productive, and cooperative workplace relationships. Additionally, the Commission needed to consider whether the changes were reasonable in the circumstances, taking into account economic and business factors, as well as the interests of the employees and the employer.

In reaching its decision, the Commission considered various submissions from both parties, including evidence of economic conditions, industry standards, and the specific operational requirements of X-Clusive Group Australia Pty Ltd. The Commission found that while the CFMEU had made a good faith effort to negotiate, the proposed variations did not sufficiently account for the business needs of the employer and the broader economic context. Consequently, the application to vary the collective agreement was dismissed. The Commission emphasised the importance of balancing the rights of employees with the operational realities faced by employers.

The final orders of the Commission were that the application for variation of the X-Clusive Group Australia Pty Ltd / CFMEU Collective Agreement 2019-2022 was refused. The existing terms and conditions of the agreement remained in effect, and both parties were directed to continue negotiations in good faith to address any outstanding issues.

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