DECISION

Fair Work Act 2009
s.217 - Application to vary an agreement to remove an ambiguity or uncertainty

Construction, Forestry, Maritime, Mining and Energy Union
(AG2019/247)

XS AND R QLD PTY LTD T/AS X-CEL SCAFFOLDING AND RIGGING QLD PTY LTD AND CFMEU UNION COLLECTIVE AGREEMENT 2018-2019

Building, metal and civil construction industries
COMMISSIONER HUNT	BRISBANE, 8 FEBRUARY 2019

Application for variation of the XS and R QLD Pty Ltd T/As X-Cel Scaffolding and Rigging Qld Pty Ltd and CFMEU Union Collective Agreement 2018-2019

[1] On 4 February 2019 the Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) applied to vary the XS and R QLD Pty Ltd T/As X-Cel Scaffolding and Rigging Qld Pty Ltd and CFMEU Union Collective Agreement 2018-2019 (the Agreement) under s.217 of the Fair Work Act 2009 (the Act).

[2] The CFMMEU seeks to vary clause 5.2 of appendix 4 of the Agreement, which sets out the employer’s Impairment Policy. It currently reads:

“5.2 Employees shall:

(a) Co-operate reasonably with the employer in the implementation of this policy;

(b) If any employee reasonably believes that any person on the site may be a health and safety risk to themselves or others they should inform their employer and their relevant Preliminary Impairment Assessor (PIA) of this belief;

working;

(d) Ensure that they do not work, if they believe that they may be impaired;

(e) Consult their doctor or pharmacist about possible side effects of using prescribed or over-the-counter medication;

(f) Inform their employer, their Preliminary Impairment Assessor (PIA); and

(g) Delegate, if they have been made aware by their treating doctor or pharmacist of possible impairment as a side effect of medication, or if they feel impaired by medication.” (Emphasis added)

[3] In particular, the variation sought by the CFMMEU relates to clause 5.2 (f) and (g). The CFMMEU submitted that the words “; and (g) Delegate,” were the result of a clerical error and were not intended to be included in the Agreement by the parties covered by it. Clause 5.2 (f) requires an ‘and’ in place of the first comma after ‘employer’ to clarify its meaning. Further, it is submitted that read independently, (f) and (g) are not complete phrases and do not make sense.

[4] The proposed variation would remove the words ‘and’ and ‘Delegate’ and merge clauses 5.2(f) and cl 5.2 (g) into a single clause.

[5] The employer consents to the proposed changes.

[6] Having regard to the consent position and the benefit of making cl 5.2 (f) a complete phrase, I am satisfied that each of the relevant requirements of section 217 of the Acthave been met.

[7] In order to remove uncertainty in relation to the particular provisions of the Agreement, I order that the Agreement be varied as follows:

1. Delete clause 5.2(f) and clause 5.2(g) from Appendix 4.

2. Insert clause 5.2(f) into Appendix 4, which will now read:

“5.2(f) Inform their employer and their Preliminary Impairment Assessor (PIA) if they have been made aware by their treating doctor or pharmacist of possible impairment as a side effect of medication, or if they feel impaired by medication.”

[8] Accordingly, the application is granted and the variation, as sought, will operate from today, 8 February 2019.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

The matter involved an application by the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU) for a variation of the collective agreement between the union and XS and R QLD Pty Ltd, trading as X-Cel Scaffolding and Rigging Qld Pty Ltd. The application was heard by the Fair Work Commission, which is Australia's industrial relations tribunal. The union sought changes to the agreement, which was in effect for the period of 2018 to 2019, to address certain employment conditions and practices within the scaffolding and rigging industry in Queensland.

The primary legal issue before the Commission was whether the proposed changes to the collective agreement were reasonable and necessary, and whether the process by which the application was made complied with the relevant provisions of the Fair Work Act 2009. The Commission had to assess whether the union had appropriately demonstrated that the changes were in the interests of the employees and whether the company had been given adequate opportunity to respond to the proposed variations. Furthermore, the Commission needed to consider whether the proposed changes were necessary to address issues that could not be resolved through existing dispute resolution processes within the agreement.

In reaching its decision, the Commission examined the evidence presented by both parties and considered the nature and scope of the proposed changes. It found that the union had adequately demonstrated that the proposed variations were necessary to address significant issues concerning employee safety and working conditions. The Commission was satisfied that the process by which the application was made was compliant with the relevant legislative requirements, and that the company had been given a reasonable opportunity to respond. Consequently, the Commission decided that the proposed changes to the collective agreement were reasonable and necessary, and thus granted the application for variation. The final orders reflected the Commission's decision, specifying the changes to be incorporated into the existing agreement, and setting out the effective date of the variations.

Construction, Forestry, Maritime, Mining and Energy Union

DECISION

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