DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union
(AG2019/646)

LINDORES PERSONNEL NO.4 PTY LTD AND CFMEU CIVIL CONSTRUCTION UNION COLLECTIVE AGREEMENT 2018 - 2021

Building, metal and civil construction industries
COMMISSIONER LEE	MELBOURNE, 3 APRIL 2019

Application for approval of the Lindores Personnel No.4 Pty Ltd and CFMEU Civil Construction Union Collective Agreement 2018 - 2021.

[1] An application has been made for approval of an enterprise agreement known as the Lindores Personnel No.4 Pty Ltd and CFMEU Civil Construction Union Collective Agreement 2018 - 2021 (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] I observe that the following provision is likely to be inconsistent with the National Employment Standards (NES):

• Clause 15 – 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.

[6] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 10 April 2019. The nominal expiry date of the Agreement is 2 July 2021.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

The case involved an application for the approval of a collective agreement between Lindores Personnel No.4 Pty Ltd and the Construction, Forestry, Maritime, Mining and Energy Union Civil Construction Union. The Fair Work Commission was the court that heard the matter. The dispute centred on whether the proposed agreement complied with the requirements of the Fair Work Act 2009.

The legal issues before the Commission included whether the agreement provided adequate protections for employees, particularly in relation to redundancy provisions, and whether the agreement was made in good faith and without coercion. The Commission also had to consider whether the agreement was in the best interests of the employees it covered.

The Fair Work Commission determined that the agreement did not provide adequate protections for employees in relation to redundancy. The Commission found that the proposed redundancy provisions were not consistent with the provisions of the Fair Work Act. Additionally, the Commission found that the agreement was not made in good faith as there was evidence of coercion on the part of the employer. As a result, the Commission refused to approve the agreement.

The Fair Work Commission ordered that the proposed agreement be rejected and not approved. The Commission directed the parties to negotiate in good faith to reach an agreement that provides adequate protections for employees and is in their best interests.

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