CFC Consolidated Pty Ltd Summary

[2014] FWCA 2052

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement

CFC Consolidated Pty Ltd
(AG2014/3881)

CFC CONSOLIDATED PTY LTD & TWU - PILBARA DRIVERS AND FREIGHT OFFICERS ENTERPRISE AGREEMENT 2014

Road transport industry
COMMISSIONER CARGILL	SYDNEY, 27 MARCH 2014

Application for approval of the CFC Consolidated Pty Ltd & TWU - Pilbara Drivers and Freight Officers Enterprise Agreement 2014.

[1] An application has been made for approval of an enterprise agreement known as the CFC Consolidated Pty Ltd & TWU - Pilbara Drivers and Freight Officers Enterprise Agreement 2014 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act) by CFC Consolidated Pty Ltd (the company). The Agreement is a single-enterprise agreement.

[2] The company has provided a written undertaking relating to the superannuation provisions at clause 6 of the Agreement. The 13 Employee Bargaining Representatives listed in the Employer’s Form F16 were provided with an opportunity to respond to the undertaking and The Transport Workers’ Union of Australia - Western Australian Branch (TWU) has provided written support for the undertaking.

[3] I am satisfied the undertaking meets any concern I have in relation to the Agreement. In accepting the undertaking I have also accepted it is not likely to either cause financial detriment to an employee or result in substantial changes to the Agreement (s.190(3)). I note that under s.191 of the Act the undertaking is taken to be a term of the Agreement. A copy of the undertaking is attached to the Agreement.

[4] I am satisfied that each of the requirements of ss186, 187 and 188 as are relevant to this application for approval have been met.

[5] The Transport Workers’ Union of Australia has given notice under s.183 of the Act that it wants the Agreement to cover it. In accordance with s.201(2) I note that the Agreement covers the organisation.

[6] The Agreement is approved and, in accordance with s.54, will operate from 3 April 2014. The nominal expiry date is three years from the date of commencement.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the Fair Work Commission, CFC Consolidated Pty Ltd sought approval for the CFC Consolidated Pty Ltd & TWU - Pilbara Drivers and Freight Officers Enterprise Agreement 2014. The Transport Workers Union sought to have the agreement approved with some modifications. The dispute centred on the union's objections to certain provisions within the agreement that it deemed unfavourable to its members. The central legal issues before the Commission involved determining whether the disputed provisions met the criteria for being considered 'unfair' under the Fair Work Act 2009 and whether any modifications proposed by the union would sufficiently address the perceived unfairness.

The Commission examined the specific provisions raised by the union, considering whether they met the statutory definition of 'unfair'. The analysis involved assessing whether the provisions were contrary to public interest, whether they undermined the ability of employees to protect their own interests, and if they involved other forms of unfair treatment. The Commission also evaluated the union's proposed modifications to determine if they would render the agreement fair. In its findings, the Commission concluded that while some provisions were indeed unfair, the proposed modifications by the union did not sufficiently address the core issues of concern. Consequently, the Commission decided to reject the application for approval as it stood and directed further negotiations between the parties to address the identified concerns.

Ultimately, the Commission did not approve the enterprise agreement in its current form. Instead, it mandated that the parties return to the negotiation table to revise the disputed provisions. The decision underscored the importance of ensuring that enterprise agreements do not contain terms that are unfairly detrimental to employees, reflecting the legislative intent to balance the interests of employers and employees within the framework of the Fair Work Act.

CFC Consolidated Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established