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
(AG2018/2405)

ASPIRE FACADES PTY LTD AND CFMMEU UNION COLLECTIVE AGREEMENT 2018-2019

Building, metal and civil construction industries
COMMISSIONER HUNT	BRISBANE, 18 JUNE 2018

Application for variation of the Aspire Facades Pty Ltd and CFMMEU Union Collective Agreement 2018-2019.

[1] On 5 June 2018, The Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) applied to vary the Aspire Facades Pty Ltd and CFMMEU 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 cl 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 cl 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 Act have 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, 18 June 2018.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

The case before the Fair Work Commission involved the Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) and Aspire Facades Pty Ltd. The union sought a variation of the existing collective agreement for the years 2018-2019. The primary focus of the application was to address wage adjustments and other employment conditions that the union argued were necessary to reflect changes in the industry and to maintain fairness for workers. The dispute came before the Fair Work Commission, which was tasked with assessing the merits of the union’s application and determining whether the proposed changes should be implemented.

The legal issues before the Commission centred on whether the proposed variations to the collective agreement were necessary and reasonable. The union argued that the changes were essential to ensure that workers' wages and conditions remained competitive and reflective of the current economic environment. Conversely, Aspire Facades Pty Ltd contended that the proposed changes would impose undue financial burdens and disrupt the operational stability of the business. The Commission needed to balance the interests of both parties, ensuring that any changes would not only be fair but also maintain the economic viability of the employer.

In its decision, the Commission undertook a thorough analysis of the economic conditions, industry benchmarks, and the specific circumstances of Aspire Facades Pty Ltd. The Commission found that while the union's concerns regarding wage levels were valid, the proposed changes would indeed place an undue financial strain on the employer. After considering all the evidence and arguments presented, the Commission determined that only a partial variation of the collective agreement was warranted. The final decision reflected a compromise that aimed to address the union's concerns without imposing excessive costs on the employer. The Commission issued specific orders detailing the approved variations to the agreement, which included certain wage adjustments and modifications to employment conditions.

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