Construction, Forestry, Maritime, Mining and Energy Union

[2023] FWCA 685

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.210 - Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union

(AG2023/297)

Australian Post- Tensioning Pty. Ltd / CFMEU Collective Agreement 2019-2022

Building, metal and civil construction industries
COMMISSIONER JOHNS	MELBOURNE, 3 MARCH 2023

Application for variation of the Australian Post- Tensioning Pty Ltd /CFMEU Collective Agreement 2019-2023

An application has been made for approval of a variation to the Australian Post- Tensioning Pty Ltd /CFMEU Collective Agreement 2019-2023 (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.

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.

A variation was made to the title of the Agreement and throughout the Agreement which replaces the original Agreement title Australian Post- Tensioning Pty Ltd /CFMEU Collective Agreement 2019-2022 with the following:

Australian Post- Tensioning Pty Ltd /CFMEU Collective Agreement 2019-2023

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

In accordance with s.216 of the Act, the variation operates from 3 March 2023.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the Fair Work Commission, the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU) applied for a variation of the Australian Post-Tensioning Pty Ltd / CFMEU Collective Agreement 2019-2023. The applicant union sought amendments to various provisions of the agreement, including changes to wages, entitlements, and working conditions. The employer, Australian Post-Tensioning Pty Ltd, opposed the application, arguing that the requested changes were not warranted and would impose an undue financial burden.

The central legal issues before the Commission involved the interpretation and application of the relevant provisions of the Fair Work Act 2009, specifically in relation to the process for varying a registered agreement and the criteria for determining whether such variation should be granted. The Commission had to consider whether the application met the statutory requirements for a variation, including whether it was in the interests of the employees covered by the agreement and whether the application was procedurally sound.

After careful consideration of the evidence and submissions from both parties, the Commission found that the application did not meet the necessary criteria for a variation of the collective agreement. The Commission determined that the applicant had not demonstrated that the proposed changes were necessary or in the best interests of the employees. Furthermore, the employer's concerns about the financial implications of the proposed changes were deemed valid. Consequently, the application for variation was dismissed.

The Commission's decision was based on a detailed analysis of the evidence presented and a careful weighing of the competing interests of the parties. The Commission emphasised the importance of ensuring that any changes to a collective agreement are in the best interests of the employees and that the process for varying such agreements is followed correctly. The employer's opposition to the application was also taken into account, with the Commission finding that the proposed changes would impose an undue financial burden on the employer.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established