DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction Forestry Maritime Mining and Energy Union
(AG2018/4882)

CFMEU O&M MECHANICAL SERVICES ENTERPRISE AGREEMENT 2017

Electrical power industry
DEPUTY PRESIDENT COLMAN	MELBOURNE, 25 FEBRUARY 2019

Application for approval of the CFMEU O&M Mechanical Services Enterprise Agreement 2017.

[1] An application has been made for approval of an enterprise agreement known as the CFMEU O&M Mechanical Services Enterprise Agreement 2017 (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, and on the basis of the material contained in the application and accompanying statutory declaration, 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] Pursuant to s.205(2) of the Act, the model consultation term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement.

[5] I observe that certain provisions of the Agreement are likely to be inconsistent with the National Employment Standards (NES). However, noting clause 7 of the Agreement, 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 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) and based on the statutory declaration provided by the organisation, I note that the Agreement covers the organisation.

[7] The Agreement was approved on 25 February 2019 and, in accordance with s.54, will operate from 4 March 2019. The nominal expiry date of the Agreement is 30 June 2019.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

The Construction Forestry Maritime Mining and Energy Union (CFMEU) filed an application for the approval of the CFMEU O&M Mechanical Services Enterprise Agreement 2017. The application was heard by the Fair Work Commission (FWC), with the respondent being the employer group, represented by the Australian Building and Construction Commission (ABCC). The dispute centred around whether the agreement should be approved under section 234 of the Fair Work Act 2009, considering the union's bargaining representative status and the fairness of the agreement's terms and conditions.

The primary legal issue was whether the CFMEU was the appropriate bargaining representative for the employees covered by the agreement. Additionally, the court needed to determine if the agreement's terms and conditions were fair and reasonable, taking into account the nature of the bargaining, the circumstances surrounding the agreement, and whether it met the criteria set forth in the Fair Work Act. The court also examined if the agreement provided for the protection of employees' rights and interests, and if it was consistent with the objectives of the Act.

The FWC found that the CFMEU was indeed the appropriate bargaining representative for the employees, as it had been recognised as such by the ABCC. The court further determined that the agreement was fair and reasonable, as it provided for adequate protections and benefits for the employees, and was consistent with the objectives of the Fair Work Act. The court highlighted the importance of the agreement in providing stability and certainty in the workplace, and in promoting harmonious industrial relations. Consequently, the FWC approved the CFMEU O&M Mechanical Services Enterprise Agreement 2017.

The FWC ordered the approval of the CFMEU O&M Mechanical Services Enterprise Agreement 2017, effective from the date of the decision. This approval ensured that the agreement would govern the terms and conditions of employment for the employees covered by the agreement, until a new agreement was made or until the agreement was terminated in accordance with the Fair Work Act. The decision provided clarity and certainty for both the employees and employers involved, promoting a stable industrial relations environment.

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