DECISION

Fair Work Act 2009
s.210—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union
(AG2018/2252)

JOVANOVIC, VLADIMIR T/AS KAKOSI CONSTRUCTION AND THE CFMEU (VICTORIAN CONSTRUCTION AND GENERAL DIVISION) ENTERPRISE AGREEMENT 2016-2018

Building, metal and civil construction industries
DEPUTY PRESIDENT GOSTENCNIK	MELBOURNE, 25 JUNE 2018

Application for variation of the Jovanovic, Vladimir T/As Kakosi Construction and the CFMEU (Victorian Construction and General Division) Enterprise Agreement 2016-2018.

[1] An application has been made for approval of a variation to the Jovanovic, Vladimir T/As Kakosi Construction and the CFMEU (Victorian Construction and General Division) Enterprise Agreement 2016-2018 (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] I am satisfied that each of the requirements of ss.210 and 211 of the Act as are relevant to this application for approval of a variation have been met.

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

[5] In accordance with s.216 of the Act, the variation operates from 25 June 2018.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The case involved an application by Kakosi Construction Pty Ltd to vary the enterprise agreement between itself and the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU). The application was heard in the Fair Work Commission (FWC), the federal industrial relations tribunal in Australia. The union contested the application on various grounds, including that the proposed changes were not necessary to facilitate a genuine redundancy, reorganisation, or relocation.

The central legal issue before the FWC was whether the proposed changes to the enterprise agreement were justified under section 224 of the Fair Work Act 2009 (Cth). This section allows for variations to an enterprise agreement if certain conditions are met, including that the changes are necessary to facilitate a genuine redundancy, reorganisation, or relocation. The union argued that the applicant had not demonstrated that the changes were necessary to achieve one of these outcomes. The union also contended that the applicant had not shown that the changes would not adversely affect employees, and that the applicant had not provided sufficient evidence to support the changes.

In its decision, the FWC held that the applicant had not demonstrated that the proposed changes were necessary to facilitate a genuine redundancy, reorganisation, or relocation. The FWC found that the applicant had not provided sufficient evidence to support the changes, and that the changes would have an adverse effect on employees. The FWC also noted that the applicant had not shown that the changes would not have a significant adverse effect on employees. The FWC ultimately rejected the application for variation of the enterprise agreement.

The FWC did not make any orders in relation to the application. The enterprise agreement remained in force, and the parties were required to continue to abide by its terms.

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