DECISION

Fair Work Act 2009
s.210—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union
(AG2021/4309)

KOHINOR SCAFFOLDING PTY LTD / CFMEU COLLECTIVE AGREEMENT 2019-2022

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

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

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

Kohinor Scaffolding 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 case involved Kohinor Scaffolding Pty Ltd and the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU) before the Fair Work Commission. The dispute centred on the application by Kohinor Scaffolding Pty Ltd for variations to the existing Collective Agreement for the period 2019-2022. The company sought changes to address issues such as wage rates, working hours, and other employment conditions, arguing that the current agreement was no longer sustainable due to economic pressures and industry changes.

The central legal issues before the Commission were whether the proposed changes were reasonable and necessary, and whether the process for seeking these variations complied with the Fair Work Act. The CFMEU argued that the proposed changes were excessive and not justified, while Kohinor Scaffolding Pty Ltd contended that the modifications were essential for the business's viability. The Commission had to balance the employer's need for flexibility against the employees' right to fair and just terms of employment.

In its decision, the Commission acknowledged the challenging economic environment faced by Kohinor Scaffolding Pty Ltd but found that some of the proposed changes were not substantiated by the evidence provided. The Commission also noted procedural issues in the application process, which it deemed did not fully comply with the requirements of the Fair Work Act. Consequently, the Commission approved only a limited set of variations, focusing on those that were deemed necessary and justifiable. The final orders reflected these findings, with specific amendments to the Collective Agreement allowing for certain wage adjustments and working hour modifications, while rejecting others as unjustified.

The Fair Work Commission's decision highlights the importance of substantiating claims for changes to employment conditions and adhering to procedural requirements. The outcome suggests a cautious approach to approving variations, emphasising the need for balance between business sustainability and employee rights.

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