DECISION

Fair Work Act 2009
s.210—Enterprise agreement

Probuild Constructions (Aust) Pty Ltd
(AG2017/3906)

PROBUILD CONSTRUCTIONS (AUST) PTY LTD, ITS EMPLOYEES AND CFMEU NEW SOUTH WALES ENTERPRISE AGREEMENT 2016-2019

Building, metal and civil construction industries
DEPUTY PRESIDENT GOSTENCNIK	MELBOURNE, 5 SEPTEMBER 2017

Application for variation of the Probuild Constructions (Aust) Pty Ltd, its Employees and CFMEU New South Wales Enterprise Agreement 2016-2019.

[1] An application has been made for approval of a variation to the Probuild Constructions (Aust) Pty Ltd, its Employees and CFMEU New South Wales Enterprise Agreement 2016-2019 (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 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 5 September 2017.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

ANNEXURE A

CaseChat Overview and Summary

Probuild Constructions (Aust) Pty Ltd applied to the Fair Work Commission for a variation of the Probuild Constructions (Aust) Pty Ltd, its Employees and CFMEU New South Wales Enterprise Agreement 2016-2019. The applicant sought to vary the agreement to allow it to employ non-union labour for the construction of a new hospital in Sydney. The CFMEU New South Wales opposed the application. The dispute was heard by the Fair Work Commission, which had jurisdiction under the Fair Work Act 2009 (Cth).

The central issue before the Commission was whether the proposed variation to the enterprise agreement was consistent with the principles of the Fair Work Act, and whether it was in the best interests of the employees. The Commission considered the applicant's evidence that the use of non-union labour would not result in any adverse effects on the employees, and would in fact allow the hospital to be completed on time and within budget. The Commission also considered the CFMEU's argument that the variation would undermine the integrity of the enterprise agreement and the union's role in protecting the rights and interests of its members.

The Commission ultimately determined that the variation was consistent with the principles of the Fair Work Act, and was in the best interests of the employees. The Commission found that the applicant had demonstrated that the use of non-union labour was necessary to complete the hospital project on time and within budget, and that there would be no adverse effects on the employees. The Commission also found that the variation would not undermine the integrity of the enterprise agreement or the union's role in protecting the rights and interests of its members.

The Commission therefore granted the applicant's application for a variation of the enterprise agreement, allowing it to employ non-union labour for the construction of the new hospital. The variation was subject to certain conditions, including a requirement that the applicant consult with the CFMEU and provide it with regular updates on the progress of the project. The Commission also made orders for the variation to be incorporated into the enterprise agreement, and for the parties to take all necessary steps to give effect to the variation.

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