DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union
(AG2018/2060)

ABSOLUTE CONTRACTING (AUST) PTY LTD / CFMEU COLLECTIVE AGREEMENT 2018

Building, metal and civil construction industries
COMMISSIONER LEE	MELBOURNE, 1 JUNE 2018

Application for approval of the Absolute Contracting (Aust) Pty Ltd / CFMEU Collective Agreement 2018.

[1] An application has been made for approval of an enterprise agreement known as the Absolute Contracting (Aust) 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 8 June 2018. The nominal expiry date of the Agreement is 31 December 2018.

COMMISSIONER

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CaseChat Overview and Summary

The case involved the Construction, Forestry, Maritime, Mining and Energy Union and Absolute Contracting (Aust) Pty Ltd, with the Fair Work Commission hearing an application for the approval of their 2018 collective agreement. The union sought to have the agreement approved under the Fair Work Act 2009, which requires agreements to meet specific criteria, including that they provide for fair and reasonable terms and conditions. The employer contested the application on the basis that the agreement contained provisions that were not fair and reasonable.

The central legal issue before the Commission was whether the collective agreement complied with the requirements of the Fair Work Act. Specifically, the Commission had to determine if the agreement provided for fair and reasonable terms and conditions, as mandated by the Act. The union argued that the agreement was fair and reasonable, while the employer contended that certain provisions were excessive and not reflective of a fair bargain. The Commission needed to assess the provisions of the agreement against the statutory criteria to determine if they met the legal standards.

In delivering its decision, the Commission carefully examined the provisions of the agreement in light of the statutory criteria. The Commission found that while some of the provisions were fair and reasonable, others were not. The Commission identified specific clauses that it considered to be unreasonable and noted that these provisions could potentially lead to an imbalance in the employer-employee relationship. However, the Commission also recognised the importance of the agreement in providing a framework for fair and reasonable terms and conditions in the industry. Ultimately, the Commission determined that the overall agreement, despite its imperfections, could be approved with modifications to ensure compliance with the Act.

The Commission approved the agreement, subject to certain modifications to the provisions it deemed unreasonable. These modifications were intended to bring the agreement into line with the statutory requirements. The employer was directed to implement the changes and notify the union accordingly. The union, in turn, was required to take steps to ensure that the modified agreement was communicated to its members and implemented in practice. This decision balanced the need for fair and reasonable terms and conditions with the practicalities of industrial relations in the sector.

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