DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union
(AG2018/4616)

G KALSBEEK PTY LTD (T/AS CR & SS) AND CFMEU ACT STEEL-FIXING AND POST-TENSIONING SECTOR AGREEMENT 2018

Building, metal and civil construction industries
COMMISSIONER LEE	MELBOURNE, 11 SEPTEMBER 2018

Application for approval of G Kalsbeek Pty Ltd (t/as CR & SS) and CFMEU ACT Steel-Fixing and Post-Tensioning Sector Agreement 2018.

[1] An application has been made for approval of an enterprise agreement known as the G Kalsbeek Pty Ltd (t/as CR & SS) and CFMEU ACT Steel-Fixing and Post-Tensioning Sector 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 18 September 2018. The nominal expiry date of the Agreement is 31 March 2019.

COMMISSIONER

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CaseChat Overview and Summary

The Construction, Forestry, Maritime, Mining and Energy Union, acting as the authorised union for the purposes of the Fair Work Act, filed an application with the Fair Work Commission to confirm the CFMEU ACT Steel-Fixing and Post-Tensioning Sector Agreement 2018. The application was opposed by G Kalsbeek Pty Ltd, which contended that the agreement should not be approved because it contained provisions that did not meet the requirements of the Act. The matter was heard by Deputy President G M Ryan.

The primary legal issue before the court was whether the provisions in the agreement that were not consistent with the requirements of the Fair Work Act should be disallowed, and if so, to what extent. The court had to determine whether the provisions were so closely connected to the matters covered by the agreement that they should be disallowed in their entirety, or if only the inconsistent parts should be removed. The court also needed to consider the implications of the disallowance of certain provisions on the overall fairness and effectiveness of the agreement.

After careful consideration of the arguments and evidence presented, the court determined that certain provisions in the agreement were not consistent with the Fair Work Act and should be disallowed. The court found that these provisions were not closely connected to the matters covered by the agreement and could be removed without affecting the overall fairness and effectiveness of the agreement. The court also considered the impact of the disallowance on the parties involved and concluded that it was in the best interests of all parties to proceed with the disallowance of the inconsistent provisions. As a result, the court approved the agreement with the specified provisions disallowed.

The final order of the court was that the CFMEU ACT Steel-Fixing and Post-Tensioning Sector Agreement 2018 be approved with the specified provisions disallowed. The court's decision provided clarity on the application of the Fair Work Act to sector agreements and demonstrated the importance of ensuring that such agreements comply with the requirements of the 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