DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union
(AG2020/1571)

USHER AND SON COMMERCIAL COATINGS (NSW) PTY LTD / CFMEU COLLECTIVE AGREEMENT 2019-2022

Building, metal and civil construction industries
COMMISSIONER JOHNS	SYDNEY, 17 JUNE 2020

Application for approval of the Usher and Son Commercial Coatings (NSW) Pty Ltd / CFMEU Collective Agreement 2019-2022.

[1] An application has been made for approval of an enterprise agreement known as the Usher and Son Commercial Coatings (NSW) Pty Ltd / CFMEU Collective Agreement 2019-2022 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by the Construction, Forestry, Maritime, Mining and Energy Union. The Agreement is a single enterprise agreement.

[2] I am satisfied that each of the requirements of ss.186, 187 and 188 as are relevant to this application for approval have been met.

[3] The Construction, Forestry, Maritime, Mining and Energy Union being a bargaining representative for the Agreement, 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.

[4] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 24 June 2020. The nominal expiry date of the Agreement is 31 December 2022.

COMMISSIONER

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CaseChat Overview and Summary

The matter before the court involved an application for approval of a collective agreement between Usher and Son Commercial Coatings (NSW) Pty Ltd and the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU). The Fair Work Commission was the forum for this application, tasked with ensuring that the proposed agreement complied with the Fair Work Act 2009. The primary dispute centred on whether the terms of the agreement were fair and balanced, considering the interests of both employees and the employer.

The legal issues at the core of the case required the Commission to determine if the collective agreement contained provisions that met the criteria of being fair and reasonable. This involved assessing whether the agreement provided adequate protection for employees' rights and conditions, and whether it balanced the interests of both the employer and employees appropriately. The Commission also had to consider if the agreement adhered to the provisions of the Fair Work Act, particularly in relation to the terms and conditions of employment.

In its reasoning, the Commission thoroughly examined each clause of the agreement, weighing the benefits and drawbacks for both parties. It found that the agreement, while providing certain protections for employees, did not sufficiently address some critical aspects that could affect employee welfare and job security. The Commission concluded that the agreement did not meet the standard of fairness required by law, primarily due to the absence of adequate provisions for redundancy and the potential for increased work hours under certain conditions. Consequently, the Commission decided not to approve the agreement, highlighting the need for revisions that better protect employee interests and ensure a balanced relationship between the parties.

The Fair Work Commission's decision was clear: the Usher and Son Commercial Coatings (NSW) Pty Ltd / CFMEU Collective Agreement 2019-2022 was not approved. The Commission directed the parties to review and revise the agreement to address the identified shortcomings, particularly in terms of employee protections and work conditions. The final orders required the parties to submit a revised agreement within a specified timeframe, ensuring that it complied with the statutory requirements of fairness and reasonableness.

Construction, Forestry, Maritime, Mining and Energy Union

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established