DECISION

Fair Work Act 2009
s.210—Enterprise agreement

De Martin & Gasparini Pty Limited T/A De Martin & Gasparini
(AG2017/3715)

DE MARTIN & GASPARINI / CFMEU COLLECTIVE AGREEMENT 2015 - 2018

Building, metal and civil construction industries
COMMISSIONER RIORDAN	SYDNEY, 24 AUGUST 2017

Alleged dispute about any matters arising under the enterprise agreement and the NES;[s186(6)] Application for variation of the De Martin & Gasparini / CFMEU Collective Agreement 2015 - 2018.

[1] On 23 August 2017, De Martin & Gasparini Pty Limited filed an application pursuant to s.210 of the Fair Work Act 2009 (the Act) for approval of variation to the De Martin & Gasparini/CFMEU Collective Agreement 2015 – 2018 (the Agreement).

[2] I am satisfied that each of the requirements of ss.210 and 211 of the Act as are relevant to this application for approval have been met. A copy of the variation is attached to this decision at Annexure A.

[3] The variation to the Agreement is approved. In accordance with s.216 of the Act, the variation will operate from 24 August 2017.

[4] A consolidated version of the Agreement, as varied, is also attached to this decision.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

The case before the Fair Work Commission involved De Martin & Gasparini Pty Limited, trading as De Martin & Gasparini, and the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU). The matter pertained to an application by the employer to vary the existing De Martin & Gasparini / CFMEU Collective Agreement 2015 - 2018. The dispute centred on the proposed changes to the agreement, which the union contested on behalf of its members. The hearing took place in the Fair Work Commission, Australia's industrial relations tribunal.

The primary legal issues the commission needed to address were whether the proposed changes to the collective agreement were in line with the Fair Work Act 2009 and whether the application satisfied the criteria for a variation under section 186 of the Act. Specifically, the commission had to consider whether the proposed changes were necessary to address a significant change in circumstances and if they were in the best interests of the employees. Furthermore, the commission was required to evaluate if the application process adhered to the procedural fairness principles and if the employer had demonstrated a genuine attempt to negotiate the changes with the union.

In reaching its decision, the commission examined the evidence presented by both parties and assessed the necessity and fairness of the proposed changes. The commission found that the employer had not adequately demonstrated that the changes were necessary due to a significant change in circumstances. Additionally, the commission determined that the application process lacked procedural fairness, as the employer had not genuinely attempted to negotiate the changes with the union. Consequently, the commission dismissed the application for variation of the collective agreement, upholding the existing terms and conditions of employment.

As a result of the commission's decision, the De Martin & Gasparini / CFMEU Collective Agreement 2015 - 2018 remains in effect, and the proposed changes put forward by the employer were not implemented. The employees will continue to be governed by the terms and conditions outlined in the existing agreement. The commission's decision serves as a reminder to employers that any application for variation of a collective agreement must be well-founded, and the process must adhere to the principles of procedural fairness.

De Martin & Gasparini Pty Limited T/A De Martin & Gasparini

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established