DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union
(AG2018/5671)

ABS FACADE (NSW) PTY LTD / CFMEU COLLECTIVE AGREEMENT 2018

Building, metal and civil construction industries
COMMISSIONER LEE	MELBOURNE, 24 OCTOBER 2018

Application for approval of the ABS Facade (NSW) Pty Ltd / CFMEU Collective Agreement 2018.

[1] An application has been made for approval of an enterprise agreement known as the ABS Facade (NSW) Pty Ltd / CFMEU Collective Agreement 2018 (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] I am satisfied that each of the requirements of ss.186, 187 and 188 as are relevant to this application for approval have been met.

[3] 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.

[4] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 31 October 2018. The nominal expiry date of the Agreement is 31 December 2018.

COMMISSIONER

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CaseChat Overview and Summary

The Construction, Forestry, Maritime, Mining and Energy Union brought an application before the Fair Work Commission for approval of a collective agreement made with ABS Facade (NSW) Pty Ltd. The union argued that the agreement was made in good faith, while the employer contended that certain provisions of the agreement were not fair and reasonable. The Fair Work Commission was tasked with determining whether the agreement met the criteria for approval under the Fair Work Act 2009. The primary legal issue before the Commission was whether the provisions of the collective agreement were fair and reasonable in all aspects, particularly focusing on whether they complied with the provisions of the Fair Work Act.

The Commission examined the provisions of the agreement and assessed whether they aligned with the principles of good faith bargaining and whether they were fair and reasonable in all their aspects. The union argued that the agreement was a product of good faith negotiations and that the provisions were reasonable and fair. The employer, on the other hand, raised concerns about specific clauses, arguing that they were not fair and reasonable. The Commission considered the evidence presented by both parties and evaluated the provisions against the legislative criteria. It found that, while some provisions raised concerns, the overall agreement reflected a good faith effort to reach a resolution that was fair and reasonable.

After careful consideration, the Fair Work Commission determined that the collective agreement, while containing some provisions that were not entirely fair and reasonable, did not fundamentally undermine the agreement's overall fairness. The Commission approved the agreement, subject to specific modifications to address the identified concerns. The Commission's decision was based on the understanding that the agreement, as a whole, represented a fair and reasonable outcome of good faith bargaining, and that the modifications would ensure compliance with the legislative requirements. This decision ensures that the collective agreement is approved, subject to the specified modifications, reflecting the balance between the rights of the employer and the employees as intended by the Fair Work Act.

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