DECISION

Fair Work Act 2009
s.210—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union
(AG2018/5703)

BASSMID CAPITAL HOLDINGS PTY LTD T/AS PROJECT CRANES AND RIGGING AND THE CFMEU MOBILE CRANE HIRING INDUSTRY ENTERPRISE AGREEMENT 2016 - 2019

Building, metal and civil construction industries
DEPUTY PRESIDENT MASSON	MELBOURNE, 24 OCTOBER 2018

Application for variation of the Bassmid Capital Holdings Pty Ltd T/As Project Cranes and Rigging and the CFMEU Mobile Crane Hiring Industry Enterprise Agreement 2016 - 2019.

[1] An application has been made for approval of a variation to the Bassmid Capital Holdings Pty Ltd T/As Project Cranes and Rigging and the CFMEU Mobile Crane Hiring Industry 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 24 October 2018.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The applicant, the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU), sought to vary the terms of the Project Cranes and Rigging Agreement between Bassmid Capital Holdings Pty Ltd and the CFMEU. The dispute centred on changes to the agreement, which governed the hiring of mobile cranes in Australia, and was heard by the Fair Work Commission. The legal issues at the heart of this case revolved around the process and grounds for varying an existing enterprise agreement under the Fair Work Act 2009. Specifically, the court had to determine whether the proposed changes met the statutory criteria for variation and whether the application was made in good faith.

The Commission considered whether the applicant had satisfied the prerequisites for varying the agreement, including whether the changes were proposed in good faith and whether they were necessary to address issues that could not be resolved through other means. The Commission examined the evidence and submissions provided by both parties, including expert testimony and documentary evidence, to assess whether the proposed changes met the statutory criteria. The court also considered the broader implications of the proposed changes for the industry and the parties involved.

After careful consideration, the Commission found that the applicant had not satisfied the statutory criteria for varying the agreement. The court concluded that the proposed changes did not meet the requirements for variation and that the application was not made in good faith. The Commission noted that the applicant had not provided sufficient evidence to support the need for the changes and that the proposed changes were not necessary to address the issues raised. The court rejected the application and found in favour of the respondent.

The final orders of the Commission included a dismissal of the application for variation of the agreement, with no order as to costs. The decision emphasised the importance of ensuring that any proposed changes to an enterprise agreement are made in good faith and meet the statutory criteria for variation. The case serves as a reminder to parties involved in enterprise agreements of the need to carefully consider the implications of any proposed changes and to ensure that any application for variation is supported by sufficient evidence.

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