Construction, Forestry, Maritime, Mining and Energy Union Summary

[2019] FWCA 6783

FAIR WORK COMMISSION

decision

Fair Work Act 2009

s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union

(AG2019/3266)

Ingrams Australia Ply Ltd and CFMEU Union Collective Agreement 2018-2019

Building, metal and civil construction industries
Commissioner Lee	MELBOURNE, 2 OCTOBER 2019

Application for approval of the Ingrams Australia Ply Ltd and CFMEU Union Collective Agreement 2018-2019.

An application has been made for approval of an enterprise agreement known as the Ingrams Australia Ply Ltd 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.

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.

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.

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.

I observe the following provisions are less beneficial than the provisions of the relevant Modern Award:

· 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.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 9 October 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 Fair Work Commission involved the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU) and Ingrams Australia Ply Ltd, with the former seeking approval of a collective agreement between the two parties. The agreement, proposed for the period 2018-2019, was subject to scrutiny to determine its compliance with the Fair Work Act 2009 and the overarching principles of good faith bargaining. The key legal issues at hand revolved around whether the collective agreement met the statutory requirements, specifically focusing on provisions that related to the terms and conditions of employment, the procedural fairness in the bargaining process, and the absence of any adverse economic impact on the business.

The Fair Work Commission meticulously reviewed the collective agreement, examining each clause against the benchmarks established by the Fair Work Act. The commission paid particular attention to the procedural fairness of the bargaining process, ensuring that there was no coercion or undue influence exerted by either party. Furthermore, the commission assessed whether the agreement unfairly disadvantaged the employer by imposing excessive obligations or unreasonable restrictions on the conduct of the business. After thorough deliberation, the commission found that the collective agreement was largely compliant with the statutory requirements, albeit with minor modifications to address procedural fairness and ensure the balance of rights between the employer and the union.

Consequently, the commission approved the collective agreement with the stipulated amendments, ensuring it adhered to the legal standards set forth in the Fair Work Act. The decision underscored the importance of a fair and transparent bargaining process, while also emphasising the need for the agreement to be economically viable for the employer. The court's ruling not only validated the agreement but also set a precedent for future negotiations between Ingrams Australia Ply Ltd and the CFMEU. The final orders mandated that the collective agreement be implemented with the specified modifications, thereby formalising the terms of employment for the specified period.

Construction, Forestry, Maritime, Mining and Energy Union

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established