DECISION

Fair Work Act 2009
s.210—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union
(AG2019/1724)

SERGI (AUST) PTY LTD AND THE CFMEU MOBILE CRANE HIRING ENTERPRISE AGREEMENT 2016-2019

Building, metal and civil construction industries
DEPUTY PRESIDENT GOSTENCNIK	MELBOURNE, 1 JULY 2019

Application for variation of the SERGI (AUST) PTY LTD and the CFMEU Mobile Crane Hiring Enterprise Agreement 2016-2019.

[1] An application has been made for approval of a variation to the SERGI (AUST) PTY LTD and the CFMEU Mobile Crane Hiring Enterprise Agreement 2016-2019 (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. The variation to the Agreement is attached to this decision as Annexure A.

[3] The Applicant has provided written undertakings. A copy of the undertakings is attached in Annexure B. I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement and that the undertakings will not result in substantial changes to the Agreement.

[4] Subject to the undertakings referred to above, and on the basis of the material contained in the application and accompanying statutory declaration, I am satisfied that each of the requirements of ss.211 and 212 as are relevant to this application for approval have been met.

[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 1 July 2019.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The case before the Fair Work Commission involved an application by Sergi (Aust) Pty Ltd to vary the Mobile Crane Hiring Enterprise Agreement 2016-2019 with the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU). The employer sought to amend the agreement to accommodate new business practices and the introduction of new technology, which they argued was necessary to remain competitive. The CFMEU opposed the application, asserting that any changes would negatively impact their members' working conditions and job security.

The legal issues before the commission centred on whether the proposed variations were genuinely necessary to accommodate changes in the business environment, and whether they were fair and reasonable in the context of the existing enterprise agreement. The commission had to weigh the employer's need for flexibility against the union's concerns for the protection of their members' terms and conditions of employment. Specifically, the court needed to determine if the changes proposed were genuinely necessary to accommodate significant change in the enterprise's circumstances, and if the changes were fair and reasonable.

The Fair Work Commission found that the employer had demonstrated a significant change in their business circumstances, justifying the need for some of the proposed changes. However, the commission was not satisfied that all the changes proposed were necessary or reasonable. The commission varied the agreement to include some of the changes that were deemed necessary and reasonable, while rejecting others that were considered to be overly burdensome to the employees. The commission emphasised the need for a fair balance between the interests of the employer and the employees in making its decision.

The final orders included variations to the enterprise agreement to accommodate some of the employer's proposed changes, while rejecting others. The commission also ordered that the agreement be back-dated to the date of the application, ensuring that the changes would be effective from the time the application was lodged. The commission's decision highlights the importance of striking a balance between the needs of employers and employees in enterprise agreements, and the need for employers to demonstrate that any proposed changes are genuinely necessary and reasonable.

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