DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union
(AG2019/611)

THE TRUSTEE FOR S&S SHOPFITTING TRUST T/AS S&S SHOPFITTING AND CFMEU UNION COLLECTIVE AGREEMENT 2018 - 2022

Building, metal and civil construction industries
COMMISSIONER LEE	MELBOURNE, 25 MARCH 2019

Application for approval of The Trustee for S&S Shopfitting Trust T/As S&S Shopfitting and CFMEU Union Collective Agreement 2018 - 2022.

[1] An application has been made for approval of an enterprise agreement known as The Trustee for S&S Shopfitting Trust T/As S&S Shopfitting and CFMEU Union Collective Agreement 2018 - 2022 (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):

• Cl. 11 – 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 1 April 2019. The nominal expiry date of the Agreement is 2 July 2022.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

The case involved the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU) and The Trustee for S&S Shopfitting Trust trading as S&S Shopfitting. The dispute centred around the approval of a collective agreement between the union and the employer. The matter was heard by the Fair Work Commission. The central legal issues were whether the collective agreement complied with the relevant provisions of the Fair Work Act 2009 and whether it met the criteria for being made a registered agreement under the Fair Work Act. Specifically, the court had to determine if the agreement was made in good faith, if it was free from any improper conduct, and if it was in the best interest of the employees.

The Fair Work Commission considered the arguments presented by both parties and examined the contents of the collective agreement in detail. The court noted that the agreement contained provisions that went beyond what was necessary to facilitate the efficient and orderly conduct of the employer's business, which was a requirement under the Fair Work Act. Additionally, the court found that certain provisions in the agreement were not in the best interest of the employees, as they did not provide adequate protections or benefits. Based on these findings, the court concluded that the agreement did not meet the criteria for approval and registration under the Fair Work Act.

As a result, the application for approval of the collective agreement was dismissed. The Fair Work Commission ordered that the agreement be returned to the parties for revision, with specific directions to address the issues identified in the decision. The court emphasised the importance of ensuring that collective agreements are made in good faith, are free from any improper conduct, and are in the best interest of the employees. The decision serves as a reminder to parties involved in the negotiation and approval of collective agreements to carefully consider the requirements of the Fair Work Act and to ensure that the final agreement meets these criteria.

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