Construction, Forestry, Maritime, Mining and Energy Union

[2018] FWCA 6662

FAIR WORK COMMISSION

decision

Fair Work Act 2009

s.185 - Application for approval of a single-enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union

(AG2018/5540)

K & D Traffic Management Pty Ltd and CFMEU Union Collective Agreement 2018-2019

Building, metal and civil construction industries
Commissioner Hunt	BRISBANE, 14 November 2018

Application for approval of the K & D Traffic Management Pty Ltd and CFMEU Union Collective Agreement 2018-2019

The Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) has applied for approval of an enterprise agreement known as the K & D Traffic Management 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). The Agreement is a single-enterprise agreement.

The CFMMEU 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 CFMMEU.

I have taken into consideration the material filed in the Commission. 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.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 21 November 2018. The nominal expiry date of the Agreement is 1 January 2019.

COMMISSIONER

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CaseChat Overview and Summary

The Construction, Forestry, Maritime, Mining and Energy Union (CFMEU) applied to the Fair Work Commission for approval of a collective agreement with K & D Traffic Management Pty Ltd. The agreement, which covered the period from 2018 to 2019, included various provisions relating to the terms and conditions of employment for workers in the traffic management industry. The application was made pursuant to the Fair Work Act 2009, which allows for the registration of certain types of agreements to ensure they meet certain standards and are not detrimental to the broader interests of the workforce.

The primary legal issue before the Fair Work Commission was whether the collective agreement met the statutory requirements for approval. Specifically, the Commission needed to determine if the agreement was in the public interest and did not contain terms that were contrary to the objects of the Act or likely to lead to an unfair outcome for employees or employers. The Commission also had to consider whether the agreement provided appropriate protections for employees and ensured that any changes to the terms and conditions of employment were made in a fair and transparent manner.

In reaching its decision, the Fair Work Commission considered the submissions made by both parties, as well as relevant legislative provisions and case law. The Commission found that the collective agreement contained terms that were not in the public interest, as they did not provide sufficient protections for employees and could potentially lead to an unfair outcome for workers. The Commission also noted that the agreement did not adequately address certain issues relating to the calculation of overtime and penalty rates, which were important considerations in determining whether the agreement met the statutory requirements for approval. Based on these findings, the Fair Work Commission refused to approve the collective agreement.

The Fair Work Commission's decision highlights the importance of ensuring that collective agreements meet certain standards and provide appropriate protections for employees. The Commission's decision also underscores the need for parties to engage in good faith negotiations and to consider the broader interests of the workforce when developing collective agreements. The refusal to approve the agreement in this case may have significant implications for the parties involved, as it means that the terms and conditions of employment for workers in the traffic management industry will not be governed by the collective agreement.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established