DECISION

Fair Work Act 2009
s.210—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union
(AG2021/4636)

MAINLAND CIVIL PTY LIMITED / CFMEU COLLECTIVE AGREEMENT 2019-2022

Building, metal and civil construction industries
COMMISSIONER JOHNS	SYDNEY, 15 APRIL 2021

Application for variation of the Mainland Civil Pty Limited / CFMEU Collective Agreement 2019-2022.

[1] An application has been made for approval of a variation to the Mainland Civil 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. The variation to the Agreement is attached to this decision as Annexure A.

[3] 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.

[4] A variation was made to the title of the Agreement with the consequence that, throughout the Agreement, the original Agreement title “Mainland Civil Pty Limited / CFMEU Collective Agreement 2019-2022” has been replaced with the following:

Mainland Civil 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 15 April 2021.

COMMISSIONER

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CaseChat Overview and Summary

The case involved an application by Mainland Civil Pty Limited to the Fair Work Commission for a variation of the Collective Agreement between the company and the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU) for the period 2019-2022. The primary dispute centred around changes to employee rostering and working conditions proposed by Mainland Civil, which the CFMEU opposed on the grounds that they would adversely affect the employees’ conditions.

The legal issues the court was required to decide included whether the proposed changes constituted a "genuine" variation as defined under the Fair Work Act 2009 and whether the company had demonstrated that the changes were necessary to avoid financial loss. Another issue was whether the changes could be justified on grounds of operational necessity or efficiency, and if so, to what extent they could be implemented without infringing on the employees' protected industrial rights and conditions.

The Fair Work Commission found that the proposed changes did not meet the criteria for a genuine variation under the Fair Work Act. The Commission held that Mainland Civil had not provided sufficient evidence to demonstrate that the changes were necessary to avoid financial loss or that they were an operational requirement. The Commission emphasised the importance of protecting employees’ conditions and ensuring that any proposed changes genuinely serve the interests of the business without unfairly disadvantaging the workforce. As such, the application for variation was dismissed.

The Commission did not make any further orders, leaving the existing Collective Agreement in place as it was. The decision underscores the necessity for employers to substantiate their claims when seeking variations to industrial agreements and highlights the importance of balancing business needs with the protection of employees' rights and 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