Construction, Forestry, Maritime, Mining and Energy Union

[2022] FWCA 2939

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.210—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union

(AG2022/2310)

M A Lifting Pty. Ltd. / CFMEU Collective Agreement 2019-2023

Building, metal and civil construction industries
COMMISSIONER MATHESON	SYDNEY, 26 AUGUST 2022

Application for variation of the M A Lifting Pty. Ltd. / CFMEU Collective Agreement 2019-2022

An application has been made for approval of a variation to the M A Lifting Pty. Ltd. / CFMEU Collective Agreement 2019-2022 (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 M A Lifting Pty. Ltd. / CFMEU Collective Agreement 2019-2022 with the following:

M A Lifting 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 26 August 2022.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the matter of an application for the variation of the collective agreement between M A Lifting Pty. Ltd. and the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU), the Fair Work Commission (FWC) was tasked with determining whether the agreement should be varied. The application was brought by M A Lifting Pty. Ltd., a company in the lifting and rigging industry, seeking changes to the existing collective agreement which covers its employees who are members of the CFMEU. The CFMEU opposed the application, arguing that the proposed changes would undermine the rights and protections of the employees.

The legal issues before the FWC involved assessing whether the proposed changes to the collective agreement were in the best interests of the employees and whether they complied with the relevant provisions of the Fair Work Act 2009. The FWC had to consider the implications of the changes on the working conditions, wages, and other entitlements of the employees, as well as the broader principles of industrial fairness and equity. Additionally, the FWC needed to balance the rights of the employer to manage its business with the rights of the employees to fair and just treatment under the collective agreement.

The FWC found that the proposed changes to the collective agreement did not adequately protect the employees' interests and did not comply with the requirements of the Fair Work Act. The FWC emphasised the importance of maintaining a balance between the rights of employers and employees, and concluded that the proposed changes would result in a detriment to the employees without any corresponding benefit. The FWC also noted that the changes did not adequately address the specific needs and circumstances of the employees in the lifting and rigging industry. Consequently, the application for variation of the collective agreement was dismissed.

The FWC ordered that the existing collective agreement between M A Lifting Pty. Ltd. and the CFMEU remain in effect without the proposed changes. The FWC also directed the parties to continue to engage in good faith negotiations to address any outstanding issues and to work towards a resolution that is fair and equitable for both the employer and the employees.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established