DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union
(AG2019/1167)

OCTEROS CABINETS PTY LTD T/AS ABC MANUFACTURING AND CFMEU UNION COLLECTIVE AGREEMENT 2018-2019

Building, metal and civil construction industries
COMMISSIONER LEE	MELBOURNE, 30 APRIL 2019

Application for approval of the Octeros Cabinets Pty Ltd T/As ABC Manufacturing and CFMEU Union Collective Agreement 2018-2019.

[1] An application has been made for approval of an enterprise agreement known as the Octeros Cabinets Pty Ltd T/As ABC Manufacturing 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.

[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] 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.

[5] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 7 May 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 Construction, Forestry, Maritime, Mining and Energy Union (CFMEU) applied to the Fair Work Commission for approval of the Octeros Cabinets Pty Ltd T/As ABC Manufacturing and CFMEU Union Collective Agreement 2018-2019. The employer contested the application on the basis that the agreement contained terms that were not consistent with the Fair Work Act. The issues before the Commission were whether the agreement contained terms that were inconsistent with the Act, and if so, whether the terms could be severed. The Commission found that the agreement contained terms that were inconsistent with the Act, however, it was in the best interests of the employees for the agreement to be approved. The Commission exercised its power under section 234 of the Act to approve the agreement with modifications, including the severance of certain inconsistent terms. The employer was ordered to give written notice to employees of the approved agreement, and the agreement was registered on the Register of Approved Agreements.

The Commission held that the agreement contained provisions that were inconsistent with the Act, including provisions that limited the employer's ability to direct employees and imposed restrictions on the employer's ability to manage its business. However, the Commission found that the employees had a strong interest in the agreement being approved, given the benefits it provided in terms of job security and improved working conditions. The Commission considered that the benefits of the agreement outweighed the inconsistencies, and exercised its discretion to approve the agreement with modifications. The Commission severed certain inconsistent terms, including provisions that limited the employer's ability to direct employees and imposed restrictions on the employer's ability to manage its business. The employer was ordered to give written notice to employees of the approved agreement, and the agreement was registered on the Register of Approved Agreements.

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