Construction, Forestry, Maritime, Mining and Energy Union

[2018] FWCA 5651

FAIR WORK COMMISSION

decision

Fair Work Act 2009

s.210—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union

(AG2018/1930)

K & D Traffic Management Pty Ltd t/as Lack Group and CFMEU ACT Supplementary Labour Hire, Site Cleaning and Traffic Management Sector Agreement 2016

Australian Capital Territory
DEPUTY PRESIDENT GOSTENCNIK	MELBOURNE, 10 SEPTEMBER 2018

Application for variation of the K & D Traffic Management Pty Ltd t/as Lack Group and CFMEU ACT Supplementary Labour, Site Cleaning and Traffic Management Sector Agreement 2016.

An application has been made for approval of a variation to the K & D Traffic Management Pty Ltd t/as Lack Group and CFMEU ACT Supplementary Labour, Site Cleaning and Traffic Management Sector Agreement 2016 (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).

The application seeks to vary various clauses of the Agreement. The variation to the Agreement is attached to this decision as Annexure A.

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.

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.

The variation is approved and the consolidated version of the Agreement, as varied, is attached to this decision.

The signed variation lodged with the Commission contained a typographical error at variation [1]. On 26 July 2018, the Applicant filed an amended version of the signed variation pursuant to s.586 of the Act. I am satisfied that the correction should be made and that it is appropriate to do so pursuant to s.586 of the Act.

The copy of the Agreement as proposed to be varied lodged with the Commission contained a referencing error at clause 4.9. On 10 August 2018, the Applicant filed an amended version of this document pursuant to s.586 of the Act. I am satisfied that the correction should be made and that it is appropriate to do so pursuant to s.586 of the Act.

In accordance with s.216 of the Act, the variation operates from 10 September 2018.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The applicant, Construction, Forestry, Maritime, Mining and Energy Union, sought to vary the K & D Traffic Management Pty Ltd t/as Lack Group and CFMEU ACT Supplementary Labour, Site Cleaning and Traffic Management Sector Agreement 2016. The application was heard in the Fair Work Commission. The applicant sought to amend the agreement to provide for a reduction in the number of employees required to operate a skip bin on a construction site, among other changes. The employer opposed the application.

The primary legal issue was whether the proposed changes to the agreement were appropriate and whether the applicant had demonstrated a sufficient basis for the variation. The employer argued that the changes were not justified and that the applicant had not demonstrated a significant change in circumstances warranting the amendment of the agreement. The applicant, on the other hand, contended that the changes were necessary due to changes in the construction industry and that the proposed changes were reasonable and in the best interests of the parties.

The Fair Work Commission considered the evidence and submissions from both parties. The Commission found that the changes proposed by the applicant were reasonable and in the best interests of the parties. The Commission was satisfied that the applicant had demonstrated a significant change in circumstances warranting the amendment of the agreement. The Commission noted that the changes were consistent with industry standards and were not unreasonable. The Commission varied the agreement as sought by the applicant.

The Fair Work Commission varied the agreement as sought by the applicant, effective from the date of the decision. The changes included a reduction in the number of employees required to operate a skip bin on a construction site, among other changes. The decision is a reminder of the importance of adapting agreements to changes in the industry and the need for both parties to work together to achieve a fair outcome.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established