DECISION

Fair Work Act 2009
s.210—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union
(AG2021/4308)

ESS SITE SERVICES PTY LTD / CFMEU COLLECTIVE AGREEMENT 2019-2022

Building, metal and civil construction industries
COMMISSIONER JOHNS	SYDNEY, 29 MARCH 2021

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

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

ESS Site 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 29 March 2021.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The parties involved in this matter are ESS Site Services Pty Ltd and the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU). The dispute pertains to a request by the employer to modify the terms of their existing collective agreement for the period 2019-2022. The application was brought before the Fair Work Commission, which is responsible for resolving disputes concerning the National Employment Standards, minimum wages, and enterprise agreements.

The central legal issues before the Commission were whether the proposed changes to the collective agreement were reasonable, and if the employer had provided sufficient justification for these modifications. The Commission needed to weigh the employer's arguments against the rights and protections afforded to employees under the Fair Work Act 2009.

The Fair Work Commission determined that the employer had not adequately demonstrated the necessity for the proposed changes. The Commission emphasised that any modifications to a collective agreement must be reasonable in all circumstances, and the employer had not sufficiently substantiated the need for the changes. Consequently, the application for variation was dismissed. The Commission underscored the importance of maintaining a balanced approach between the rights of employers and employees, and found that the employer had not met the required threshold for approval of the requested changes. The decision was grounded in the principle that any alteration to an existing agreement should not undermine the protections and rights established by the Fair Work Act.

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