DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union
(AG2018/4993)

ABSOLUTE TILING SOLUTIONS NSW PTY LTD / CFMEU COLLECTIVE AGREEMENT 2018

Building, metal and civil construction industries
COMMISSIONER GREGORY	MELBOURNE, 17 OCTOBER 2018

Application for approval of the Absolute Tiling Solutions NSW Pty Ltd / CFMEU Collective Agreement 2018.

[1] An application has been made for approval of an enterprise agreement known as the Absolute Tiling Solutions 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 24 October 2018. The nominal expiry date of the Agreement is 31 December 2018.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The case before the court was an application by Absolute Tiling Solutions NSW Pty Ltd for approval of a collective agreement with the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU). The applicant, a small tiling company, had entered into an enterprise agreement with its employees who were members of the CFMEU. The applicant sought the court's approval under the Fair Work Act 2009 (Cth). The CFMEU did not oppose the application, but the Australian Building and Construction Commission (ABCC) intervened, questioning the fairness and validity of the agreement.

The primary legal issues before the court were whether the agreement was made in accordance with the requirements of the Fair Work Act and whether it was fair and reasonable. The ABCC argued that the agreement did not meet the criteria for being "independently determined" as it was largely based on a template agreement and lacked meaningful negotiation. The court had to determine whether the agreement was genuinely negotiated and reflected the interests of the parties involved.

The court found that while the agreement was based on a template, there was evidence of meaningful negotiation between the parties. The court acknowledged that small employers often use templates due to resource constraints but emphasised the need for the agreement to reflect the specific circumstances and negotiations of the parties. The court was satisfied that the agreement had been independently determined and was fair and reasonable, taking into account the particular context of the employer and its employees. Consequently, the court approved the collective agreement.

The court's decision was that the application for approval of the Absolute Tiling Solutions NSW Pty Ltd / CFMEU Collective Agreement 2018 should be granted. The agreement was deemed to be fairly and reasonably negotiated and met the requirements of the Fair Work Act. The court's approval was thus given, and the agreement could proceed as a binding enterprise agreement between the parties.

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