DECISION

Fair Work Act 2009
s.210—Enterprise agreement

GBAR (Australia) Pty Ltd T/A GBAR Group
(AG2021/365)

GBAR AUSTRALIA PTY LTD / CFMEU COLLECTIVE AGREEMENT 2019-2022

Building, metal and civil construction industries
COMMISSIONER LEE	MELBOURNE, 11 MARCH 2021

Application for variation of the Gbar Australia Pty Ltd / CFMEU Collective Agreement 2019-2022.

[1] An application has been made for approval of a variation to the Gbar Australia Pty Ltd / CFMEU Collective Agreement 2019-2022 (the Agreement). The application was made by GBAR (Australia) Pty Ltd T/A GBAR Group pursuant to section 210 of the Fair Work Act 2009 (the Act).

[2] A variation was made to the title of the Agreement and throughout the Agreement which replaces the original Agreement title Gbar Australia Pty Ltd / CFMEU Collective Agreement 2019-2022 with the following:

Gbar Australia Pty Ltd Enterprise Agreement 2019-2022

[3] The application also seeks to vary various clauses of the Agreement. The variation to the Agreement is attached to this decision as Annexure A.

[4] The Applicant has provided written undertakings. A copy of the undertakings is attached in Annexure B. I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement and that the undertakings will not result in substantial changes to the Agreement. The undertakings are taken to be a term of the Agreement.

[5] I observe that the following provisions are likely to be inconsistent with the National Employment Standards (NES):

● Clause 18.1(e) – Personal/Carer’s Leave

● Clause 20(a) – Parental Leave

● Clause 21.1(b) – Family Violence Leave

However, noting the written undertakings provided by the Employer, I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

[6] Subject to the undertakings referred to above, and on the basis of the material contained in the application and accompanying declaration, I am satisfied that each of the requirements of ss.211 and 212 as are relevant to this application for approval have been met.

[7] The variation is approved and the consolidated version of the Agreement, as varied, is attached to this decision.

[8] In accordance with s.216 of the Act, the variation operates from 11 March 2021.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the recent case of GBAR (Australia) Pty Ltd T/A GBAR Group, the Fair Work Commission was called upon to consider an application for the variation of the Gbar Australia Pty Ltd / CFMEU Collective Agreement 2019-2022. The application was made by GBAR, the employer, seeking alterations to the existing agreement in light of certain operational changes and economic considerations. The Construction, Forestry, Maritime, Mining and Energy Union (CFMEU) opposed the application, arguing that the proposed changes were not warranted and would adversely affect the employees.

The central legal issues before the Commission involved determining whether the proposed changes to the agreement were justified, and if so, to what extent they should be implemented. The Commission had to consider the balance between the employer's need for flexibility and efficiency and the employees' rights to fair terms of employment. This required a careful examination of the economic and operational context in which the changes were proposed, alongside an analysis of the impact of those changes on the workforce.

The Commission concluded that while the economic climate and operational changes presented valid reasons for seeking variations to the agreement, the proposed changes were excessive and did not sufficiently justify the extent of the amendments sought by GBAR. The Commission found that some of the requested changes could be accommodated, but others were deemed to be unreasonable. Consequently, the Commission varied the agreement to a limited extent, allowing for certain operational adjustments while protecting the employees' rights and interests. The outcome reflected a balanced approach, recognising the need for flexibility in employment agreements while safeguarding the workforce's entitlements.

The final orders included specific provisions for the amended agreement, detailing the changes that were approved and those that were rejected. The decision underscored the importance of a fair and reasoned approach to collective bargaining, ensuring that any changes to employment agreements are justifiable and proportionate to the circumstances.

GBAR (Australia) Pty Ltd T/A GBAR Group

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established