DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union
(AG2019/863)

USHER & SON COMMERCIAL COATINGS PTY LTD / CFMEU SOUTH AUSTRALIA ENTERPRISE AGREEMENT 2019

Building, metal and civil construction industries
COMMISSIONER LEE	MELBOURNE, 12 APRIL 2019

Application for approval of the Usher & Son Commercial Coatings Pty Ltd / CFMEU South Australia Enterprise Agreement 2019.

[1] An application has been made for approval of a greenfields agreement known as the Usher & Son Commercial Coatings Pty Ltd / CFMEU South Australia Enterprise Agreement 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] 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.

[4] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 19 April 2019. The nominal expiry date of the Agreement is 31 May 2019.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The matter before the Fair Work Commission involved an application for approval of an enterprise agreement between Usher & Son Commercial Coatings Pty Ltd and the Construction, Forestry, Maritime, Mining and Energy Union South Australia Branch. The dispute centred on the terms and conditions outlined in the proposed agreement, which the Union sought to have recognised as a legally binding contract between the employer and its employees. The case was adjudicated by the Fair Work Commission, the industrial relations tribunal in Australia.

The primary legal issues the Commission had to address were whether the agreement met the formal requirements for approval under the Fair Work Act 2009, and whether the terms of the agreement were fair and reasonable. This included scrutiny of whether the agreement complied with the provisions of the Act regarding protected industrial action and whether it adequately provided for the employees' interests. The Commission also had to consider whether the agreement contained terms that would unduly harm the employer's capacity to operate efficiently.

The Fair Work Commission found that the agreement satisfied the formal requirements for approval, including that it had been made free from coercion, duress orundue influence. The Commission noted that the agreement had been the result of good faith negotiations between the parties and had been signed by the necessary representatives. Regarding the fairness and reasonableness of the agreement's terms, the Commission examined the various provisions and found that, while some terms could potentially impact the employer's operational flexibility, they were not so severe as to render the agreement unfair. The Commission concluded that the overall balance of the agreement was fair and reasonable, taking into account the benefits to the employees.

The Commission approved the Usher & Son Commercial Coatings Pty Ltd / CFMEU South Australia Enterprise Agreement 2019, and it was registered by the Registrar of the Fair Work Commission on the date of the decision.

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