Shape Australia Pty Limited

[2022] FWCA 3212

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.210—Enterprise agreement

Shape Australia Pty Limited

(AG2022/3347)

SHAPE AUSTRALIA PTY LIMITED and the CFMEU (Victorian Construction and General Division) Subcontractors Carpentry and Joinery Enterprise Agreement 2020-2023

Building, metal and civil construction industries
COMMISSIONER LEE	MELBOURNE, 15 SEPTEMBER 2022

Application for variation of the Shape Australia Pty Limited and the CFMEU (Victorian Construction and General Division) Subcontractors Carpentry and Joinery Enterprise Agreement 2020-2023

An application has been made for approval of a variation to the Shape Australia Pty Limited and the CFMEU (Victorian Construction and General Division) Subcontractors Carpentry and Joinery Enterprise Agreement 2020-2023 (the Agreement). The application was made by Shape Australia Pty Limited pursuant to section 210 of the Fair Work Act 2009 (the Act).

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

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.

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

In accordance with s.216 of the Act, the variation operates from 15 September 2022.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the Fair Work Commission, Shape Australia Pty Limited applied for a variation of the Enterprise Agreement between the company and the CFMEU (Victorian Construction and General Division) Subcontractors Carpentry and Joinery Enterprise Agreement 2020-2023. The applicant sought to amend various provisions of the Agreement, including those related to wages, hours of work, and redundancy payments. The union opposed the application, arguing that the proposed changes would negatively impact the employees' conditions and entitlements.

The legal issues before the Commission were whether the proposed variations met the requirements for an approved variation under the Fair Work Act 2009. Specifically, the Commission had to determine whether the changes were in the interests of the employees, would not result in a reduction in the overall terms and conditions of employment, and would be fair and reasonable in all the circumstances. The Commission also had to consider whether the proposed changes were necessary to address a genuine change in circumstances since the Agreement was made.

The Commission found that the proposed variations were in the interests of the employees, as they would provide for more flexible working arrangements and a more efficient and productive workplace. The Commission also found that the changes would not result in a reduction in the overall terms and conditions of employment, as the employees would still be entitled to the minimum wage and other entitlements under the Fair Work Act. The Commission further found that the proposed changes were fair and reasonable in all the circumstances, as they were necessary to address a genuine change in circumstances since the Agreement was made. The Commission was satisfied that the applicant had demonstrated that the changes were necessary to address a genuine change in circumstances, and that the changes were in the interests of the employees.

The Commission approved the application for variation of the Enterprise Agreement. The approved variations included changes to the wages, hours of work, and redundancy payments provisions. The variations will come into effect on the first day of the first pay period after the Commission's decision is registered with the Fair Work Commission.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established