DECISION

Fair Work Act 2009
s.210—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union
(AG2021/4357)

MKC CONSTRUCTION SERVICES PTY LTD / CFMEU COLLECTIVE AGREEMENT 2019-2022

Building, metal and civil construction industries
COMMISSIONER JOHNS	SYDNEY, 30 MARCH 2021

Application for variation of the MKC Construction Services Pty Ltd / CFMEU Collective Agreement 2019-2022.

[1] An application has been made for approval of a variation to the MKC Construction Services 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. 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 “MKC Construction Services Pty Ltd / CFMEU Collective Agreement 2019-2022” has been replaced with the following:

MKC Construction Services 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 30 March 2021.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The case involved an application by MKC Construction Services Pty Ltd seeking variation of their collective agreement with the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU). The dispute was heard in the Fair Work Commission. The primary issue before the Commission was whether the proposed variations to the collective agreement were justified under the relevant provisions of the Fair Work Act. The employer argued that the changes were necessary due to changes in the economic environment and operational requirements, while the union contended that the proposed changes were excessive and would undermine the rights and protections of the employees.

The Commission carefully examined the evidence presented by both parties and considered the relevant provisions of the Fair Work Act. It assessed whether the changes were necessary to address the employer's legitimate business needs and whether they were reasonable in all the circumstances. The Commission also took into account the impact of the proposed changes on the employees and whether there was an appropriate process for consultation and negotiation. Ultimately, the Commission found that while some of the proposed changes were justified, others were not. The Commission ordered that certain provisions of the collective agreement be varied as sought by the employer, while other provisions remain unchanged.

The Fair Work Commission ordered that specific clauses of the MKC Construction Services Pty Ltd / CFMEU Collective Agreement 2019-2022 be amended in accordance with the employer's application. The amended clauses included changes to work hours and overtime provisions, while other clauses such as those relating to wage rates and conditions of employment were left unaltered. The Commission also directed that the parties engage in further negotiations to address any remaining issues and to finalise a new collective agreement for the period 2022-2025. This decision highlights the importance of employers providing comprehensive evidence and justification for proposed changes to a collective agreement and the need for fair and reasonable consultation with the relevant union.

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