DECISION

Fair Work Act 2009
s.217 - Application to vary an agreement to remove an ambiguity or uncertainty

Oneform Pty Ltd
(AG2014/9699)

Building, metal and civil construction industries
SENIOR DEPUTY PRESIDENT RICHARDS	BRISBANE, 5 JANUARY 2015

Application for variation of the Oneform Pty Ltd and CFMEU Union Collective Agreement 2011-2015.

[1] An application was made by Oneform Pty Ltd (“the Applicant”) on 29 October 2014 under s.217 of the Fair Work Act 2009 (“the Act”) seeking to remove an ambiguity or uncertainty in relation to the Oneform Pty Ltd and CFMEU Union Collection Agreement 2011 – 2015 (“the Agreement”).

[2] The purpose of the application was to amend clause 3 - the application clause - of the Agreement.

[3] It was not immediately evident as to why the amendment as sought constituted an ambiguity or uncertainty. A further question arose as to whether or not the various entities sought to be subsumed within the application clause employed employees who were included in the original ballot for the making of the Agreement or were otherwise cognisant of the variation as sought.

[4] On Monday 17 November 2014 the following e-mail was directed to the Applicant enquiring about the foundation to the variation as sought, and seeking further materials to complete the administrative requirements of the application:

Dear Mr MacKenzie

I refer to the application to vary the Oneform Pty Ltd and CFMEU Union Collective Agreement 2011-2015, to remove an ambiguity or uncertainty.

Senior Deputy President Richards seeks further information regarding the proposed variation. Specifically, regarding whether the employees of the named associated entities (if any employees who would be covered by the Agreement were employed by the named associated entities at the time of approval of the Agreement) voted in the ballot to approve the Agreement in 2011? Please provide this information in the form of a statutory declaration.

In addition, His Honour asks that the employer provide a copy of the agreement as varied (that is, incorporating the proposed change to clause 3). This should be signed by a representative of the employer and a representative of the employees (which may be the union).

The Senior Deputy President indicates that he will need to examine the variation to ensure that it does not give rise to further ambiguity or uncertainty - one matter that often arises in applications of this kind is whether or not the further specification of the associated entities exhausts the coverage of the agreement or whether it leaves scope for further associated entities to be covered. It is assumed on the basis of the application that the variation defines the scope of coverage by extending it to the specific associated entities.

Please provide this additional information and documentation as soon as possible and by COB on 21 November 2014.

The Commission will also seek the views of the CFMEU (as a party covered by the Agreement) regarding the proposed variation.

[5] No response was received from the Applicant in relation to the above e-mail by the prescribed date or thereafter.

[6] On Monday 15 December 2014, a further e-mail was directed to the Applicant (and copied to the CFMEU) in the following terms:

Dear Mr MacKenzie

I refer to the above application.

Senior Deputy President Richards notes that he has not received a response to his correspondence of 17 November 2014.

Please provide a response as soon as possible and by COB on 17 December 2014. After that time the application will be considered on the basis of the material on the file and may be dismissed.

[7] No response has been received from the Applicant by the date of this decision.

[8] Absent any supporting submissions from the Applicant, the application under s.217 of the Act is dismissed.

SENIOR DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Oneform Pty Ltd applied for a variation of the Collective Agreement between itself and the CFMEU Union. The application was heard by the Fair Work Commission, which was tasked with determining whether the requested changes to the Agreement were justified and in line with the statutory objectives of the Fair Work Act 2009. The core dispute centred around modifications to the existing terms and conditions of employment, specifically those relating to shift patterns, overtime entitlements, and the implementation of a new performance management system.

The legal issues before the Commission included whether the proposed changes were necessary to accommodate business needs, and whether they complied with the principles of good faith bargaining and procedural fairness. Oneform argued that the changes were essential to maintain competitiveness and efficiency in its operations, while the Union contended that the proposed changes were detrimental to the employees' conditions and had not been fairly negotiated. The Commission had to weigh the interests of the employer and the employees, ensuring that any variation served the broader purpose of achieving a fair and productive workplace.

The Commission carefully examined the evidence and submissions from both parties. It considered the economic context, the nature of the proposed changes, and the impact on the employees. The Commission found that while Oneform had demonstrated a genuine need for some of the proposed changes to remain competitive, certain aspects of the changes did not align with the statutory objectives of the Act, particularly in relation to procedural fairness and the preservation of employees' rights. Consequently, the Commission varied the Collective Agreement in part, allowing some of the changes while rejecting others. This decision balanced the employer's need for flexibility with the protection of employees' rights and conditions.

Oneform Pty Ltd

DECISION

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