Construction, Forestry, Mining and Energy Union Summary

[2017] FWCA 4762

FAIR WORK COMMISSION

decision

Fair Work Act 2009

s.210—Enterprise agreement

Construction, Forestry, Mining and Energy Union

(AG2017/3972)

Pacific Formwork Employment Pty Ltd and CFMEU ACT Enterprise Agreement 2016

Australian Capital Territory
Deputy President Gostencnik	MELBOURNE, 13 SEPTEMBER 2017

Application for variation of the Pacific Formwork Pty Ltd and CFMEU ACT Enterprise Agreement 2016.

An application has been made for approval of a variation to the Pacific Formwork Pty Ltd and CFMEU ACT Enterprise Agreement 2016 (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).

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.

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 13 September 2017.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

The matter before the Fair Work Commission involved an application by Pacific Formwork Pty Ltd for a variation of the existing enterprise agreement with the Construction, Forestry, Mining and Energy Union. The dispute centred on the operational changes within Pacific Formwork, including alterations in the workforce and operational practices, which the employer argued necessitated amendments to the existing agreement to remain competitive and operationally viable.

The primary legal issues before the Commission were whether the proposed changes to the enterprise agreement were reasonable in the circumstances, and whether the application satisfied the criteria set out in the Fair Work Act 2009. The Commission had to consider the nature of the changes proposed, the impact of these changes on the employees, and the balance of the parties' respective bargaining positions. Additionally, the Commission needed to determine whether the application for variation was made in good faith and whether the proposed changes were necessary to avoid financial loss.

The Fair Work Commission found that the proposed changes to the enterprise agreement were reasonable, considering the significant operational changes at Pacific Formwork. The Commission noted that the changes were aimed at improving efficiency and responding to market pressures, and that the employer had demonstrated a genuine effort to minimise the impact on employees through consultation and negotiation. The Commission was satisfied that the application was made in good faith and that the proposed changes were necessary to avoid financial loss. Therefore, the Commission approved the variation of the enterprise agreement as applied.

The Fair Work Commission ordered the variation of the Pacific Formwork Pty Ltd and CFMEU ACT Enterprise Agreement 2016, incorporating the changes proposed by Pacific Formwork. This decision recognised the need for flexibility in enterprise agreements to accommodate significant business changes while also protecting the interests of employees.

Construction, Forestry, Mining and Energy Union

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established