DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Mining and Energy Union
(AG2016/1671)

VARI LABOUR (NSW) PTY LTD / CFMEU GREENFIELDS AGREEMENT 2016 - 2018

Building, metal and civil construction industries
COMMISSIONER ROE	MELBOURNE, 5 JULY 2016

Application for approval of the Vari Labour (NSW) Pty Ltd / CFMEU Greenfields Agreement 2016 - 2018.

[1] An application has been made for approval of an enterprise Agreement known as the Vari Labour (NSW) Pty Ltd / CFMEU Greenfields Agreement 2016 - 2018 (Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (Act). It has been made by the Construction, Forestry, Mining and Energy Union.

[2] This is a greenfields Agreement that meets the requirements of s.172(2)(b) of the Act. I am satisfied that each of the requirements of ss.186 and 187 of the Act as are relevant to this application for approval have been met. In accordance with s.187(5)(a) of the Act, I am satisfied that the Construction, Forestry, Mining and Energy Union is entitled to represent the industrial interests of a majority of employees who will be covered by the Agreement in relation to work that is to be performed under it. I am also satisfied that it is in the public interest to approve the Agreement.

[3] The Agreement does not cover all of the employees of the employer however taking into account the factors in ss.186(3) and (3A) I am satisfied that the group of employees was fairly chosen.

[4] Pursuant to s.205(2) of the Act, the model consultation term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement.

[5] Pursuant to s.53(2)(b) I note the Agreement was made with the Construction, Forestry, Mining and Energy Union and that the Agreement covers this organisation.

[6] The Agreement is approved and, in accordance with s.54, will operate from 12 July 2016. The nominal expiry date of the Agreement is 1 May 2018.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the Fair Work Commission, the Construction, Forestry, Mining and Energy Union (CFMEU) applied for approval of the Vari Labour (NSW) Pty Ltd / CFMEU Greenfields Agreement 2016 - 2018. The applicant union and the employer were parties to an existing enterprise agreement, which was due to expire on 30 June 2016. The employer sought a range of changes to the existing agreement, including changes to pay rates, hours of work, and shift arrangements. The union opposed the application on the basis that the proposed changes were not reasonable.

The primary issue before the Commission was whether the proposed changes to the enterprise agreement were reasonable, having regard to the matters set out in section 230 of the Fair Work Act 2009. The Commission noted that the employer had not provided any evidence to support its claim that the proposed changes were necessary for its business, and that the union had raised a number of concerns about the impact of the proposed changes on employees. The Commission also noted that the proposed changes would result in a significant reduction in pay rates for some employees, and that the union had argued that this was not justified.

The Commission held that the proposed changes to the enterprise agreement were not reasonable. The employer had failed to provide any evidence to support its claim that the proposed changes were necessary for its business, and the union had raised a number of concerns about the impact of the proposed changes on employees. The Commission also noted that the proposed changes would result in a significant reduction in pay rates for some employees, and that the union had argued that this was not justified. The Commission held that the proposed changes were not reasonable, and dismissed the application for approval of the enterprise agreement.

The Commission ordered that the existing enterprise agreement would continue in force until a new agreement was made, or until the earlier of the agreement being terminated in accordance with its terms, or a new agreement being made by the parties. The Commission also ordered that the employer and the union must meet to discuss the terms of a new enterprise agreement within 30 days of the date of the decision.

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