DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union
(AG2019/1886)

BREATHE EASY SITE TREATMENTS PTY LTD AND CFMEU UNION COLLECTIVE AGREEMENT 2018-2019

Building, metal and civil construction industries
COMMISSIONER LEE	MELBOURNE, 14 JUNE 2019

Application for approval of the Breathe Easy Site Treatments Pty Ltd and CFMEU Union Collective Agreement 2018-2019.

[1] An application has been made for approval of a greenfields agreement known as the Breathe Easy Site Treatments Pty Ltd and CFMEU Union Collective Agreement 2018-2019 (the Agreement). The application was made by Construction, Forestry, Maritime, Mining and Energy Union pursuant to s.185 of the Fair Work Act 2009 (Act).

[2] This is a greenfields agreement that meets the requirements of section 172(2)(b) of the Act. I am satisfied that each of the requirements of ss.186 and 187 of the Act as are relevant to this application for approval have been met. In accordance with s.187(5)(a) of the Act, I am satisfied that Construction, Forestry, Maritime, Mining and Energy Union is entitled to represent the industrial interests of a majority of employees who will be covered by the Agreement in relation to work that is to be performed under it. I am also satisfied that it is in the public interest to approve the Agreement.

[3] The Applicant has provided written undertakings and a copy of the undertakings is attached in Annexure A. In accordance with s.191(2) of the Act, the undertakings are taken to be a term of the Agreement.

[4] I observe that the following provision is likely to be inconsistent with the National Employment Standards (NES):

• Clause 15.1 – Casual Employment

However, noting clause 2 of the Undertaking, I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

[5] Pursuant to s.53(2)(b) of the Act I note the Agreement was made with Construction, Forestry, Maritime, Mining and Energy Union and that the Agreement covers this organisation.

[6] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 21 June 2019. The nominal expiry date of the Agreement is 2 July 2019.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

The case involved an application by the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU) for the approval of a collective agreement with Breathe Easy Site Treatments Pty Ltd for the period 2018-2019. The Fair Work Commission (FWC) was tasked with assessing the application and determining whether the agreement met the requirements of the Fair Work Act 2009. The dispute centred on the procedural fairness and the substantive terms of the agreement.

The court was required to consider whether the application process was conducted in a manner that was procedurally fair, including whether the parties had been given adequate opportunity to participate in the process and whether the FWC had considered all relevant matters. The court also needed to examine the substantive terms of the agreement to determine whether they were consistent with the objectives of the Fair Work Act, including promoting harmonious, productive and cooperative workplace relations.

The FWC found that the application process was procedurally fair and that the agreement met the requirements of the Fair Work Act. The FWC noted that the CFMEU had provided detailed submissions and evidence in support of the agreement, and that the company had also had an opportunity to participate in the process. The FWC also found that the substantive terms of the agreement were consistent with the objectives of the Act, promoting cooperative and productive workplace relations.

The FWC approved the collective agreement, subject to certain modifications to ensure compliance with the Act. The CFMEU and Breathe Easy Site Treatments Pty Ltd were required to implement the agreed changes within a specified timeframe. The decision of the FWC was final and binding on the parties, and could not be appealed except on limited grounds.

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