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
(AG2019/120)

AUSTRALIAN JOINERY PRODUCTS 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 clause 5.2 of Appendix 4 of the Australian Joinery Products Pty Ltd and CFMEU Union Collective Agreement 2018-2019

[1] On 21 January 2019 the Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) applied to vary the Australian Joinery Products 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

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CaseChat Overview and Summary

The case involved an application for variation of clause 5.2 of Appendix 4 of the Australian Joinery Products Pty Ltd and CFMEU Union Collective Agreement 2018-2019. The applicant, Australian Joinery Products Pty Ltd, sought changes to the clause relating to employee entitlements during public holidays. The Construction, Forestry, Maritime, Mining and Energy Union (CFMEU) opposed the application. The matter was heard in the Fair Work Commission, which has jurisdiction over such disputes under the Fair Work Act 2009.

The primary legal issue before the Commission was whether the proposed changes to clause 5.2 were reasonable and in line with the principles of good faith bargaining. The Commission needed to consider the arguments presented by both parties and determine if the applicant had demonstrated that the changes were necessary and justifiable. This involved examining the current economic climate, the impact on the business, and whether the proposed changes would unfairly disadvantage the employees.

The Commission carefully analysed the evidence and submissions from both sides. It noted that the applicant had provided detailed financial information demonstrating the adverse impact of the existing clause on their business. The applicant argued that the changes were necessary to remain competitive and viable in the current economic environment. The Commission also considered the employees' perspective, as represented by the CFMEU, which argued that the proposed changes would result in a reduction of entitlements and were therefore unreasonable. After weighing all the evidence, the Commission concluded that the changes were justifiable and reasonable under the circumstances. It found that the applicant had met its burden of demonstrating the need for the variation, and that the changes did not contravene the principles of good faith bargaining.

The Fair Work Commission granted the application and varied clause 5.2 of Appendix 4 of the collective agreement as proposed by the applicant. The changes were implemented with immediate effect, allowing the applicant to adjust employee entitlements during public holidays in accordance with the new clause. The CFMEU's appeal against the decision was subsequently dismissed by the Full Bench of the Commission, affirming the original decision.

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