DECISION

Fair Work Act 2009
s.210—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union
(AG2021/4414)

ELLSWORTH PTY LTD / CFMEU COLLECTIVE AGREEMENT 2019-2022

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

Application for variation of the Ellsworth Pty Ltd / CFMEU Collective Agreement 2019-2022.

[1] An application has been made for approval of a variation to the Ellsworth 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).

[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 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 Ellsworth Pty Ltd / CFMEU Collective Agreement 2019-2022 has been replaced with the following:

Ellsworth 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

In the Fair Work Commission, the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU) applied for a variation of the Ellsworth Pty Ltd / CFMEU Collective Agreement 2019-2022. The application was made under section 235C of the Fair Work Act 2009, seeking to amend the existing agreement to better accommodate the needs of employees working in the construction industry. The dispute centred around the terms and conditions of employment, including hours of work, shift patterns, and leave entitlements, as well as the introduction of new provisions addressing health and safety concerns.

The primary legal issue before the Commission was whether the proposed variations to the collective agreement were necessary and appropriate, and whether they complied with the statutory requirements set out in the Fair Work Act. The Commission had to consider whether the changes would provide a better outcome for the employees involved and whether they were in line with the objectives of the Act, which aim to facilitate high levels of economic and social performance and industrial peace. The CFMEU argued that the variations were essential to address emerging issues in the construction industry, while Ellsworth Pty Ltd contended that the existing agreement was sufficient and that the proposed changes were not justified.

After considering the evidence and submissions from both parties, the Commission found that the proposed variations were necessary to address the specific needs of employees in the construction industry. The Commission determined that the changes would provide a more balanced and fair outcome for employees, particularly in relation to working hours, shift patterns, and health and safety provisions. The Commission concluded that the variations were in line with the objectives of the Fair Work Act and were therefore appropriate. The Commission approved the variations to the Ellsworth Pty Ltd / CFMEU Collective Agreement 2019-2022, with the changes to take effect from the date of the decision.

The Fair Work Commission orders that the Ellsworth Pty Ltd / CFMEU Collective Agreement 2019-2022 be varied as per the application filed by the CFMEU, with the changes to be effective from the date of this decision. The specific amendments include revisions to the working hours, shift patterns, and leave entitlements, as well as the introduction of new health and safety provisions. Both parties are bound by the terms of the varied agreement and must adhere to the new provisions as set out in the decision.

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