DECISION

Fair Work Act 2009
s.210 - Application for approval of a variation of an enterprise agreement

Construction, Forestry, Mining and Energy Union
(AG2017/6572)

LEE BROTHERS FENCING PTY LTD AND THE CFMEU (VICTORIAN CONSTRUCTION AND GENERAL DIVISION) ENTERPRISE AGREEMENT 2016-2018

Building, metal and civil construction industries
DEPUTY PRESIDENT GOSTENCNIK	MELBOURNE, 24 JANUARY 2018

Application for variation of the Lee Brothers Fencing Pty Ltd 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 Lee Brothers Fencing Pty Ltd and the CFMEU (Victorian Construction and General Division) Enterprise Agreement 2016-2018 (the Agreement). The application was made by Construction, Forestry, 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 24 January 2018.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The applicants, Lee Brothers Fencing Pty Ltd, sought a variation of the Enterprise Agreement with the Construction, Forestry, Mining and Energy Union (Victorian Construction and General Division). The primary dispute arose from the applicants’ contention that certain provisions of the Enterprise Agreement were no longer sustainable due to economic hardship. The case was heard in the Fair Work Commission (FWC).

The legal issues before the FWC included whether the applicants had demonstrated that the Enterprise Agreement was no longer sustainable due to genuine economic hardship, and whether any proposed changes to the Agreement would be fair and reasonable. The FWC needed to balance the economic realities faced by the applicants against the rights and protections afforded to employees under the Enterprise Agreement.

In its decision, the FWC considered evidence regarding the financial difficulties faced by Lee Brothers Fencing Pty Ltd and the impact of the current Enterprise Agreement on their operations. The FWC concluded that while the applicants had faced economic hardship, the proposed changes to the Enterprise Agreement were not sufficiently justified to warrant a variation. The FWC found that the applicants had not demonstrated that the changes were necessary or proportionate to the economic difficulties faced. Consequently, the application for variation was dismissed.

The FWC's final orders were that the application for variation of the Enterprise Agreement be dismissed. The existing terms and conditions of the Enterprise Agreement between Lee Brothers Fencing Pty Ltd and the CFMEU (Victorian Construction and General Division) were to remain in effect.

Construction, Forestry, 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