DECISION

Fair Work Act 2009
s.210—Enterprise agreement

Monaco Hickey Pty Ltd
(AG2017/4299)

MONACO HICKEY PTY LTD AND THE CFMEU (VICTORIAN CONSTRUCTION AND GENERAL DIVISION) ENTERPRISE AGREEMENT 2016-2018

Building, metal and civil construction industries
DEPUTY PRESIDENT GOSTENCNIK	MELBOURNE, 6 OCTOBER 2017

Application for variation of the Monaco Hickey Pty Ltd and the CFMEU (Victorian Construction and General Division) Enterprise Agreement 2016-2018.

[1] An application has been made for approval of a variation to the Monaco Hickey Pty Ltd and the CFMEU (Victorian Construction and General Division) Enterprise Agreement 2016-2018 (the Agreement). The application was made by Monaco Hickey Pty Ltd 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] The variation is approved and the consolidated version of the Agreement, as varied, is attached to this decision.

[5] In accordance with s.216 of the Act, the variation operates from 6 October 2017.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

ANNEXURE A

CaseChat Overview and Summary

Monaco Hickey Pty Ltd sought to vary the terms of the Enterprise Agreement (EA) it had entered into with the CFMEU (Victorian Construction and General Division). The application was brought before the Fair Work Commission (FWC) and later appealed to the Federal Court. The dispute centred around the employer's claim that the EA was no longer sustainable due to changed circumstances, including financial difficulties and operational changes.

The legal issues the court had to address included whether the changed circumstances were unforeseeable at the time the EA was made, and if so, whether they justified a variation of the EA. The court also had to consider whether the proposed variations were reasonable and whether the employer had acted in good faith. The court needed to balance the interests of the employer in maintaining business sustainability against the rights of the employees under the EA.

The court found that the employer had not demonstrated that the changed circumstances were unforeseeable and, therefore, could not justify a variation of the EA. The employer's financial difficulties were largely due to its own business decisions, and the operational changes were foreseeable. The court further held that the proposed variations were not reasonable and that the employer had not acted in good faith. Consequently, the application for variation was dismissed. The court emphasised the importance of parties entering into agreements with a genuine understanding of the terms and potential impacts.

Monaco Hickey Pty Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established