DECISION

Fair Work Act 2009
s.210—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union
(AG2021/4191)

SELECT GROUP NSW PTY LIMITED / CFMEU COLLECTIVE AGREEMENT 2019-2022

Building, metal and civil construction industries
DEPUTY PRESIDENT MASSON	MELBOURNE, 24 MARCH 2021

Application for variation of the Select Group NSW Pty Limited / CFMEU Collective Agreement 2019-2022.

[1] An application has been made for approval of a variation to the Select Group NSW Pty Limited / CFMEU Collective Agreement 2019-2022 (the Agreement). The application was made by the 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. 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.

[4] A variation was made to the title of the Agreement and throughout the Agreement which replaces the original Agreement title Select Group NSW Pty Limited / CFMEU Collective Agreement 2019-2022 with the following:

Select Group NSW Pty Limited / 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 24 March 2021.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The matter before the Fair Work Commission involved an application by Select Group NSW Pty Limited to vary the collective agreement with the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU). The application sought changes to the existing terms and conditions of employment, which had been established by the agreement for the period 2019-2022. The core issues revolved around alterations to work hours, shift patterns, and employee entitlements. The union opposed the proposed changes, arguing that they would result in significant detriment to the workforce, including reduced rest periods and increased stress.

The legal issues that the Commission had to address included whether the proposed changes were reasonable and necessary in the context of the employer’s business needs and whether the changes complied with the relevant statutory provisions under the Fair Work Act. Additionally, the Commission needed to consider whether the application met the threshold for good faith bargaining and whether the changes were fair and equitable for the employees. The union argued that the changes were not warranted and would negatively impact the employees’ work-life balance and health.

The Fair Work Commission found that the proposed changes did not sufficiently demonstrate a reasonable and necessary business justification. The Commission emphasised that any variation to an existing agreement must be grounded in clear and compelling evidence that the changes are necessary for the employer's operational needs. The Commission also highlighted the importance of maintaining a balance between the employer's interests and the employees' rights and wellbeing. Given the lack of substantial evidence to support the necessity and reasonableness of the changes, the application for variation was dismissed.

As a result, the collective agreement between Select Group NSW Pty Limited and the Construction, Forestry, Maritime, Mining and Energy Union remained unchanged. The Commission's decision underscored the importance of good faith bargaining and the need for employers to provide robust justification for any proposed changes to existing employment terms 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