J. Hutchinson Pty. Ltd.

[2024] FWCA 4461

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.218A - application to vary an agreement to correct or amend errors, defects or irregularities

J. Hutchinson Pty. Ltd.

(AG2024/4650)

J HUTCHINSON PTY LTD AND THE CFMEU (VICTORIAN CONSTRUCTION AND GENERAL DIVISION) ENTERPRISE AGREEMENT 2024 - 2027

Building, metal and civil construction industries
COMMISSIONER MATHESON	SYDNEY, 12 DECEMBER 2024

Application for variation of the J Hutchinson Pty Ltd and the CFMEU (Victorian Construction and General Division) Enterprise Agreement 2024 -2027

An application has been made by J. Hutchinson Pty. Ltd. (Applicant) pursuant to s.218A of the Fair Work Act 2009 (Cth)(Act) to vary the J Hutchinson Pty Ltd and the CFMEU (Victorian Construction and General Division) Enterprise Agreement 2024-2027 (Agreement) to correct or amend an error, defect or irregularity.

The Agreement was approved by the Fair Work Commission (Commission) on 19 September 2024 and commenced operation on 26 September 2024. The Applicant is the employer covered by the Agreement. The Construction, Forestry and Maritime Employees Union is also covered by the Agreement.

Section 218A(1) provides that the Commission may vary an enterprise agreement to correct or amend an obvious error, defect or irregularity (whether in substance or form). The Agreement contains an obvious error in clause 2 of the Agreement in that the employer’s ABN is incorrectly stated. In particular, clause 2 of the Agreement currently states the employer’s ABN as 38 004 255 654 which is not the ABN of the Applicant. The Applicant seeks to have the Agreement reflect the correct ABN which is 52 009 778 330. The views of the bargaining representatives for the Agreement were sought and no objections were raised.

Pursuant to section 218A of the Act, I vary the Agreement to correct this obvious error such that the reference to the ABN ‘38 004 255 654’ in clause 2 of the Agreement is replaced with the Applicant’s correct ABN, being ‘52 009 778 330’.

The variation operates from 26 September 2024 being the date the Agreement commenced operation.

COMMISSIONER

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CaseChat Overview and Summary

In the matter of J. Hutchinson Pty Ltd, the applicant sought a variation to the Enterprise Agreement with the Construction, Forestry, Maritime, Mining and Energy Union (Victorian Construction and General Division). The application was brought before the Fair Work Commission, a tribunal with jurisdiction over workplace relations and industrial disputes. The dispute centred around the terms of the Enterprise Agreement, which governs employment conditions for employees in the construction industry. J. Hutchinson Pty Ltd argued that changes in the economic climate and operational requirements necessitated adjustments to certain provisions of the agreement.

The central legal issues before the Commission were whether the changes proposed by J. Hutchinson Pty Ltd were justified and whether they adhered to the principles of good faith bargaining and fairness. The Commission had to determine if the proposed variations were necessary and reasonable in light of the economic conditions and operational needs of the company. Additionally, the Commission considered whether the changes would be fair and reasonable for the employees involved, and whether the company had acted in good faith throughout the bargaining process.

In delivering its decision, the Commission carefully weighed the evidence presented by both parties. It found that the economic challenges faced by the company and the need for operational efficiency justified some of the proposed changes. However, the Commission also highlighted the importance of maintaining a balance between the needs of the employer and the rights of the employees. The Commission concluded that while some variations were necessary, others were not warranted and would unduly disadvantage the employees. Consequently, the Commission approved certain variations but rejected others, emphasising the need for ongoing dialogue and negotiation to address future challenges.

The final orders of the Commission approved specific variations to the Enterprise Agreement, including adjustments to working hours and conditions in response to economic pressures. The Commission also mandated that both parties engage in further discussions to explore additional changes and to ensure that any future adjustments are made in good faith and with due regard for the interests of all parties involved.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established