DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union
(AG2018/7092)

TILECORP PTY LTD AND CFMEU UNION COLLECTIVE AGREEMENT 2018-2019

Building, metal and civil construction industries
COMMISSIONER LEE	MELBOURNE, 18 JANUARY 2019

Application for approval of the Tilecorp Pty Ltd and CFMEU Union Collective Agreement 2018-2019.

[1] An application has been made for approval of an enterprise agreement known as the Tilecorp Pty Ltd 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 25 January 2019. The nominal expiry date of the Agreement is 1 January 2019.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

The matter before the Fair Work Commission involved an application for the approval of a collective agreement between Tilecorp Pty Ltd and the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU) for the period 2018-2019. The dispute centred on whether the agreement contained provisions that contravened the requirements of the Fair Work Act 2009. The Commission had to determine whether the agreement should be certified as a registered agreement under the Act.

The primary legal issues for the Commission to address were whether certain provisions of the collective agreement were consistent with the Fair Work Act. Specifically, the Commission examined whether the agreement complied with the provisions concerning employee entitlements, such as minimum rates of pay, hours of work, and leave entitlements. The Commission also needed to consider whether the agreement unfairly disadvantaged any particular group of employees and whether it contained any terms that were not genuinely bargained between the parties.

The Commission found that the collective agreement contained several provisions that were not compliant with the Fair Work Act. While the majority of the agreement was found to be fairly negotiated and in line with the Act, certain clauses relating to employee entitlements were deemed to be inconsistent with the statutory requirements. These clauses failed to provide adequate protections for employees and were thus rejected by the Commission. The Commission concluded that the agreement, as it stood, could not be certified as it contained terms that contravened the Act. The Commission provided detailed reasons for its decision, highlighting the specific sections of the agreement that were problematic and offering guidance on how the parties could amend the agreement to achieve compliance.

The Fair Work Commission ultimately refused to approve the collective agreement in its current form. It directed the parties to negotiate and amend the agreement to ensure that all provisions met the requirements of the Fair Work Act. The Commission emphasised the importance of genuine bargaining and compliance with statutory entitlements in collective agreements. The parties were given a period within which to make the necessary amendments and resubmit the agreement for approval.

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