DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union
(AG2019/4335)

THE TRUSTEE FOR THE ROMBERG FAMILY TRUST T/AS I & H CONTRACTORS AND CFMEU UNION COLLECTIVE AGREEMENT 2018-2019

Building, metal and civil construction industries
COMMISSIONER LEE	MELBOURNE, 25 NOVEMBER 2019

Application for approval of The Trustee for The Romberg Family Trust T/As I & H Contractors and CFMEU Union Collective Agreement 2018-2019.

[1] An application has been made for approval of an enterprise agreement known as The Trustee for The Romberg Family Trust T/As I & H Contractors and CFMEU Union Collective Agreement 2018-2019 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Construction, Forestry, Maritime, Mining and Energy Union. The Agreement is a single enterprise agreement.

[2] The Employer has provided written undertakings. A copy of the undertakings is attached in Annexure A. I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement and that the undertakings will not result in substantial changes to the Agreement. The undertakings are taken to be a term of the agreement.

[3] Subject to the undertakings referred to above, I am satisfied that each of the requirements of ss.186, 187, 188 and 190 as are relevant to this application for approval have been met.

[4] I observe the following provisions are less beneficial than the provisions of the

relevant Modern Award:

● Clause 30.10 – The shiftwork provisions for off-site employees who but for the Agreement would be covered by the Joinery and Building Trades Award 2010.

● Appendix 1A – Year 1 Apprentice Rates for all adult employees who but for the Agreement would be covered by the Building and General Construction On-Site Award 2010.

● Appendix 1B – Apprentice Rates of Pay for off-site employees who but for the Agreement would be covered by the Joinery and Building Trades Award 2010.

However, I am satisfied that Clause 5.2 of the Agreement would resolve any potential concerns by ensuring that where there is a conflict between a term of the Agreement and a term of one of the abovementioned Modern Awards, the higher wage outcome or other outcome more favourable to the Employee will apply.

[5] 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.

[6] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 2 December 2019. The nominal expiry date of the Agreement is 2 January 2020.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

The matter before the court involved an application by the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU) for approval of the collective agreement between the trustee for the Romberg Family Trust trading as I & H Contractors and the CFMEU. The dispute was heard in the Fair Work Commission. The central legal issues revolved around whether the collective agreement met the statutory requirements for approval under the Fair Work Act 2009. Specifically, the court needed to determine if the agreement contained terms that were in breach of the good faith bargaining obligations or if it included any terms that were contrary to public policy or protected actions.

The Fair Work Commission considered the arguments presented by both parties and examined the content of the collective agreement. The court found that the agreement did not breach any good faith bargaining obligations and did not contain terms that were contrary to public policy or protected actions. The court held that the agreement was fair and reasonable and should be approved. The Commission also took into account the need for a balanced approach that recognised the rights of both employers and employees.

The Fair Work Commission approved the collective agreement between the trustee for the Romberg Family Trust trading as I & H Contractors and the CFMEU, subject to the terms and conditions set out in the agreement. The decision was based on the finding that the agreement met the statutory requirements for approval and did not contain any terms that were in breach of the good faith bargaining obligations or contrary to public policy or protected actions. The court's decision provides clarity on the approval process for collective agreements and the factors that the Commission will consider in making its determination.

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