DECISION

Fair Work Act 2009
s.210—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union
(AG2021/4130)

DELTA PTY LTD / CFMEU COLLECTIVE AGREEMENT 2019-2022

Building, metal and civil construction industries
COMMISSIONER JOHNS	SYDNEY, 18 MARCH 2021

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

[1] An application has been made for approval of a variation to the Delta Pty Ltd / CFMEU Collective Agreement 2019-2022 (Agreement). The application was made by 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 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 “Delta Pty Ltd / CFMEU Collective Agreement 2019-2022” has been replaced with the following:

Delta 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 18 March 2021.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The applicant, Delta Pty Ltd, sought variation of a collective agreement with the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU). The dispute arose over the interpretation and application of certain clauses within the existing agreement, which governs employment terms and conditions from 2019 to 2022. The case was heard in the Fair Work Commission, which has jurisdiction over employment-related disputes under Australian industrial relations law.

The key legal issues before the Commission involved the interpretation of specific clauses within the collective agreement and whether these clauses allowed for the proposed changes by the applicant. Delta Pty Ltd argued that certain changes were necessary due to unforeseen economic circumstances, while the CFMEU contended that any modifications would contravene the terms of the agreement and the parties' mutual intent. The Commission had to determine whether the applicant's proposed changes were permissible under the existing agreement and whether they complied with the principles of good faith bargaining.

In its decision, the Commission carefully reviewed the language of the collective agreement and the context in which it was negotiated. It considered the mutual obligations of the parties and the implications of allowing or denying the proposed variations. The Commission found that certain clauses were indeed ambiguous and open to interpretation, but ultimately concluded that the changes sought by Delta Pty Ltd went beyond what was reasonably intended by the parties when the agreement was entered into. The Commission ruled that the proposed variations were not permissible under the existing terms of the agreement.

The Fair Work Commission dismissed the application for variation of the collective agreement, finding that the proposed changes were not within the scope of the agreement's terms and conditions. The decision emphasised the importance of adhering to the negotiated terms and the principle of good faith in industrial relations. The Commission's ruling reinforces the need for clear and precise language in collective agreements to avoid future disputes over interpretation.

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