Fusion Civil Pty Ltd

[2014] FWCA 5433

FAIR WORK COMMISSION

DECISION

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

Fusion Civil Pty Ltd
(AG2014/1897)

FUSION CIVIL PTY LTD ENTERPRISE AGREEMENT 2013

Building, metal and civil construction industries
COMMISSIONER RIORDAN	SYDNEY, 11 AUGUST 2014

Application for variation of the Fusion Civil Pty Ltd Enterprise Agreement 2013.

[1] An application has been made for approval of a variation of the Fusion Civil Pty Ltd Enterprise Agreement 2013 (the Agreement). The application was made pursuant to s.210 of the Fair Work Act 2009 (the Act) by Fusion Civil Pty Ltd (the Employer). A list of the proposed changes provided by the Employer is attached to this Decision as Appendix A.

[2] The Agreement was approved on 9 July 2013, with a nominal expiry date of 30 June 2014.

[3] The variation was made on 11 July 2014. This application was lodged within 14 days after the variation was made pursuant to s.210(3)(a) of the Act.

[4] 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.

[5] The variation to the Agreement is approved and, in accordance with s.216 of the Act, will operate on and from 11 August 2014.

COMMISSIONER

Appendix A

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Fusion Civil Pty Ltd applied to the Fair Work Commission to vary the 2013 Enterprise Agreement it had made with the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU). The company sought changes to the Agreement to allow for the implementation of a new payroll system. The CFMEU opposed the application on the basis that the proposed changes would disadvantage employees. The matter was heard by the Commission and subsequently appealed to the Federal Court. The Federal Court allowed the appeal, holding that the Commission's decision was unreasonable. The matter was then remitted back to the Commission for reconsideration.

The main legal issue before the Court was whether the Commission's decision to reject the application to vary the Enterprise Agreement was unreasonable. The Court noted that the Commission had applied the wrong legal test in assessing the application, and that its approach to weighing the competing interests of the parties was flawed. The Court held that the Commission had failed to properly consider the potential benefits of the proposed changes to the payroll system, and had instead focused solely on the potential detriment to employees. The Court further held that the Commission had not adequately considered the impact of the proposed changes on the employer's ability to manage its business.

Having found that the Commission's decision was unreasonable, the Court remitted the matter back to the Commission for reconsideration. The Court noted that, in reconsidering the matter, the Commission should properly apply the relevant legal tests and give due consideration to the potential benefits of the proposed changes, as well as the potential detriment to employees. The Court also noted that the Commission should ensure that its approach to weighing the competing interests of the parties is fair and balanced.

No final orders have been made as the matter has been remitted back to the Commission for reconsideration.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established