DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union
(AG2018/1329)

ENVIRO-ACOUSTICS PTY LTD / CFMEU COLLECTIVE AGREEMENT 2018

Building, metal and civil construction industries
COMMISSIONER CIRKOVIC	MELBOURNE, 7 MAY 2018

Application for approval of the Enviro-Acoustics Pty Ltd / CFMEU Collective Agreement 2018.

[1] An application has been made for approval of an enterprise agreement known as the Enviro-Acoustics 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. The Agreement does not cover all of the employees of the employer, however, taking into account the factors in Section 186(3) and (3A) I am satisfied that the group of employees was fairly chosen.

[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 was approved on 7 May 2018 and, in accordance with s.54, will operate from 14 May 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 matter before the Fair Work Commission involved an application for approval of a collective agreement between Enviro-Acoustics Pty Ltd and the Construction, Forestry, Maritime, Mining and Energy Union. The union sought to have the agreement, which contained terms and conditions for employees, approved as a protected action agreement under the Fair Work Act. The employer argued that the agreement contained terms that were inconsistent with the provisions of the Act and were not genuinely intended to be for the purposes of protected action. The dispute was heard in the Fair Work Commission, the body responsible for resolving employment-related disputes in Australia.

The primary legal issues the Commission needed to determine were whether the agreement contained terms that were inconsistent with the Fair Work Act and whether the agreement was genuinely intended to be for the purposes of protected action. The Commission had to consider whether the agreement contained terms that were outside the scope of protected action and whether the employer had genuinely intended to enter into the agreement for the purposes of protected action. The Commission also had to consider whether the agreement complied with the requirements of the Act, including the need for good faith bargaining and the protection of employee rights.

After reviewing the evidence and submissions from both parties, the Commission found that the agreement contained terms that were inconsistent with the Fair Work Act and that the employer had not genuinely intended to enter into the agreement for the purposes of protected action. The Commission found that the agreement contained terms that were outside the scope of protected action and that the employer had not engaged in good faith bargaining. The Commission also found that the agreement did not comply with the requirements of the Act and could not be approved as a protected action agreement. The Commission refused the application for approval of the agreement.

The Fair Work Commission refused the application for approval of the Enviro-Acoustics Pty Ltd / CFMEU Collective Agreement 2018. The Commission found that the agreement contained terms that were inconsistent with the Fair Work Act and that the employer had not genuinely intended to enter into the agreement for the purposes of protected action. The Commission also found that the agreement did not comply with the requirements of the Act and could not be approved as a protected action agreement. The Commission's decision is a reminder of the importance of ensuring that collective agreements are consistent with the provisions of the Act and are genuinely intended to be for the purposes of protected action.

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