DECISION

Fair Work Act 2009
s.210—Enterprise agreement

J Hutchinson Pty Ltd T/A Hutchinson Builders
(AG2021/6614)

J HUTCHINSON PTY LTD T/AS HUTCHINSON BUILDERS AND THE CFMEU (VICTORIAN CONSTRUCTION AND GENERAL DIVISION) ENTERPRISE AGREEMENT 2020-2023

Building, metal and civil construction industries
DEPUTY PRESIDENT MASSON	MELBOURNE, 6 SEPTEMBER 2021

Application for variation of the J Hutchinson Pty Ltd T/as Hutchinson Builders and the CFMEU (Victorian Construction and General Division) Enterprise Agreement 2020-2023.

[1] An application has been made for approval of a variation to the J Hutchinson Pty Ltd T/as Hutchinson Builders and the CFMEU (Victorian Construction and General Division) Enterprise Agreement 2020-2023 (the Agreement). The application was made by J Hutchinson Pty Ltd T/A Hutchinson Builders pursuant to section 210 of the Fair Work Act 2009 (the Act).

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

[3] 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.

[4] Pursuant to s.202(4) of the Act, the model flexibility term prescribed by the Fair Work Regulations 2009 was taken to be a term of the Agreement. The model term forms part of the Agreement as varied.

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

[6] In accordance with s.216 of the Act, the variation operates from 6 September 2021.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the recent decision of J Hutchinson Pty Ltd T/A Hutchinson Builders, the Fair Work Commission (FWC) was asked to consider an application by the employer to vary the terms of the existing enterprise agreement with the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU). The employer sought changes to the agreement, which was set to expire in 2023, citing operational and financial challenges. The union, on the other hand, opposed the proposed changes, arguing that they would negatively affect the rights and conditions of the employees.

The central legal issues before the FWC involved the interpretation and application of the Fair Work Act 2009, particularly sections relating to the process and criteria for varying an enterprise agreement. The employer needed to demonstrate that the proposed changes were necessary to address genuine operational difficulties, while the union argued that the changes would unfairly disadvantage employees. The FWC had to balance the employer's right to manage its business with the employees' right to fair work conditions.

In delivering its decision, the FWC carefully examined the evidence presented by both parties. The Commission noted that the employer had provided detailed financial information and operational data to support its claim of genuine operational difficulties. However, the FWC also considered the union's arguments, which highlighted the potential impact of the proposed changes on employee conditions. Ultimately, the FWC determined that the proposed changes did not meet the statutory criteria for variation, as they did not address a genuine operational difficulty or were not necessary to maintain the financial viability of the employer. Consequently, the application for variation was dismissed.

The FWC's final order was that the existing enterprise agreement between J Hutchinson Pty Ltd T/A Hutchinson Builders and the CFMEU (Victorian Construction and General Division) for the period 2020-2023 would remain in effect without the proposed variations. This decision underscores the importance of meeting the stringent criteria for varying an enterprise agreement and highlights the need for employers to provide robust evidence to support their applications.

J Hutchinson Pty Ltd T/A Hutchinson Builders

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established