Construction, Forestry, Maritime, Mining and Energy Union Summary

[2018] FWCA 5687

FAIR WORK COMMISSION

decision

Fair Work Act 2009

s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union

(AG2018/4624)

ADEPT PROJECT SOLUTIONS PTY LTD and the CFMEU (Victorian Construction and General Division) Enterprise Agreement 2016-2018

Building, metal and construction industries
Commissioner Wilson	MELBOURNE, 11 SEPTEMBER 2018

Application for approval of the ADEPT PROJECT SOLUTIONS PTY LTD and the CFMEU (Victorian Construction and General Division) Enterprise Agreement 2016-2018.

An application has been made for approval of an enterprise agreement known as the ADEPT PROJECT SOLUTIONS PTY LTD and the CFMEU (Victorian Construction and General Division) Enterprise Agreement 2016-2018 (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.

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.

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.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 18 September 2018. The nominal expiry date of the Agreement is 30 September 2018.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The matter before the court involved an application for approval of the ADEPT Project Solutions Pty Ltd and the Construction, Forestry, Maritime, Mining and Energy Union (Victorian Construction and General Division) Enterprise Agreement 2016-2018. The dispute arose between the applicant employer and the union, with the Fair Work Commission acting as the respondent. The primary issue was whether the proposed enterprise agreement met the criteria for approval under the Fair Work Act 2009, specifically in terms of ensuring that the agreement provides for fair and reasonable terms and conditions for the employees.

The court examined whether the agreement satisfied the requirements set out in the Fair Work Act. Key considerations included whether the agreement provided for the appropriate minimum entitlements, such as rates of pay, leave provisions, and other employment conditions. The court also assessed if the agreement was free from any unfair provisions that could negatively impact the employees' rights or workplace fairness. The court's decision was influenced by the submissions from both parties and relevant legal precedents concerning enterprise agreements.

In reaching its decision, the court found that the proposed agreement did not fully comply with the statutory requirements for fair and reasonable terms. Specifically, the court identified certain provisions in the agreement that it deemed to be unfair. These provisions included clauses that could potentially restrict employees' rights and were not adequately justified. Consequently, the court refused to approve the agreement. The court's reasoning was grounded in the need to protect employees' rights and ensure that the terms of employment agreements are fair and reasonable.

Following the court's decision, the application for approval of the enterprise agreement was dismissed. The court's ruling mandated that the agreement be amended to address the identified issues before it could be considered for future approval. This outcome underscored the importance of ensuring that enterprise agreements align with the legislative framework designed to safeguard employees' interests.

Construction, Forestry, Maritime, Mining and Energy Union

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established