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
(AG2018/2402)

DARCY ROBINSON T/AS ROBRAND PROJECT SUPPORT SERVICES AND CFMMEU UNION COLLECTIVE AGREEMENT 2018-2019

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

Application for variation of the Darcy Robinson T/As Robrand Project Services 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 Darcy Robinson T/As Robrand Project Services 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

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The applicant, Darcy Robinson trading as Robrand Project Services, sought a variation of the Collective Agreement 2018-2019 with the Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU). The Fair Work Commission (FWC) was the tribunal tasked with deciding the application. The central issue before the FWC was whether the proposed variation of the collective agreement met the criteria for approval under the Fair Work Act 2009. The FWC had to assess whether the variation would lead to a more productive and efficient workplace and whether the variation was in the interests of the employees and the employer.

The FWC considered various factors in reaching its decision, including the impact of the proposed variation on productivity, efficiency, and the overall health of the workplace. The applicant argued that the variation was necessary to improve operational efficiency and reduce costs, while the CFMMEU contended that the changes would negatively affect employee conditions and job security. After evaluating the submissions and evidence from both parties, the FWC concluded that the variation did not meet the necessary criteria for approval. The tribunal found that the proposed changes would not lead to a more productive workplace and that the variation was not in the best interests of the employees.

Accordingly, the FWC dismissed the application for variation of the collective agreement. The decision emphasised the importance of maintaining a balance between the interests of employers and employees when considering variations to collective agreements. The FWC's decision highlights the need for any proposed changes to demonstrate clear benefits to the workplace and the employees, as well as being in line with the principles of good faith bargaining and fair work practices.

Construction, Forestry, Maritime, Mining and Energy Union

DECISION

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