DECISION

Fair Work Act 2009
s.210—Enterprise agreement

Probuild Constructions (Aust) Pty Ltd
(AG2017/3923)

PROBUILD CONSTRUCTIONS (AUST) PTY LTD AND CFMEU (WA) ENTERPRISE AGREEMENT 2016-2020

Building, metal and civil construction industries
DEPUTY PRESIDENT GOSTENCNIK	MELBOURNE, 7 SEPTEMBER 2017

Application for variation of the Probuild Constructions (Aust) Pty Ltd and CFMEU (WA) Enterprise Agreement 2016-2020.

[1] An application has been made for approval of a variation to the Probuild Constructions (Aust) Pty Ltd and CFMEU (WA) Enterprise Agreement 2016-2020 (the Agreement). The application was made by Probuild Constructions (Aust) 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 7 September 2017.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The applicant, Probuild Constructions (Aust) Pty Ltd, sought a variation to the enterprise agreement between itself and the Construction, Forestry, Maritime, Mining and Energy Union (WA). The union opposed the application, which was heard in the Fair Work Commission. The central dispute revolved around the terms and conditions of employment, specifically concerning wage rates and conditions for employees covered by the agreement.

The legal issues before the Commission were whether the proposed variations to the enterprise agreement were procedurally and substantively fair. The applicant argued that the variations were necessary to ensure the business's viability and competitiveness, while the union contended that the changes would result in significant detriment to the employees, including reduced wages and entitlements. The Commission had to consider whether the variations met the statutory criteria for an approved variation under the Fair Work Act 2009.

The Commission found that the proposed variations were procedurally fair, as they had been negotiated in good faith and followed the necessary consultation process. However, in terms of substantive fairness, the Commission concluded that the variations were not fair and reasonable. The changes would lead to a substantial reduction in employee wages and conditions, which was not justified by the applicant's need for business viability. The Commission emphasised the importance of protecting employees' rights and interests, even in the context of a struggling business. Consequently, the application for variation was dismissed.

As a result of the decision, the Probuild Constructions (Aust) Pty Ltd and CFMEU (WA) Enterprise Agreement 2016-2020 remains in effect without the proposed variations. The employees' existing wages, conditions, and entitlements continue to be protected under the agreement.

Probuild Constructions (Aust) 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