DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Mining and Energy Union
(AG2016/4254)

TUSCAN APPLIED FINISHES PTY LTD T/A WALL-TECH AND CFMEU UNION COLLECTIVE AGREEMENT 2015 - 2019

Building, metal and civil construction industries
COMMISSIONER ROE	MELBOURNE, 18 AUGUST 2016

Application for approval of the Tuscan Applied Finishes Pty Ltd T/A Wall-Tech and CFMEU Union Collective Agreement 2015 - 2019.

[1] An application has been made for approval of an enterprise Agreement known as the Tuscan Applied Finishes Pty Ltd T/A Wall-Tech and CFMEU Union Collective Agreement 2015 - 2019 (Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (Act). It has been made by the Construction, Forestry, Mining and Energy Union.

[2] This is a greenfields Agreement that meets the requirements of s.172(2)(b) of the Act. I am satisfied that each of the requirements of ss.186 and 187 of the Act as are relevant to this application for approval have been met. In accordance with s.187(5)(a) of the Act, I am satisfied that the Construction, Forestry, Mining and Energy Union is entitled to represent the industrial interests of a majority of employees who will be covered by the Agreement in relation to work that is to be performed under it. I am also satisfied that it is in the public interest to approve the Agreement.

[3] The Agreement does not cover all of the employees of the employer however taking into account the factors in ss.186(3) and (3A) I am satisfied that the group of employees was fairly chosen.

[4] Pursuant to s.53(2)(b) I note the Agreement was made with the Construction, Forestry, Mining and Energy Union and that the Agreement covers this organisation.

[5] The Agreement is approved and, in accordance with s.54, will operate from 25 August 2016. The nominal expiry date of the Agreement is 2 July 2019.

COMMISSIONER

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CaseChat Overview and Summary

The case involved an application by the Construction, Forestry, Mining and Energy Union (CFMEU) for approval of the Tuscan Applied Finishes Pty Ltd T/A Wall-Tech and CFMEU Union Collective Agreement 2015-2019. The matter was brought before the Fair Work Commission (FWC) which was tasked with determining whether the agreement complied with the relevant statutory provisions. The primary dispute centred around the legality of certain provisions within the agreement that related to penalty rates and their applicability under specific circumstances.

The central legal issues that the FWC had to decide included whether the agreement was genuinely a collective agreement, whether it complied with the statutory requirements of the Fair Work Act 2009, and if the provisions concerning penalty rates were lawful. The FWC also had to examine if the agreement contained appropriate mechanisms for resolving disputes that might arise during its term.

In reaching its decision, the FWC considered the nature and content of the agreement, the bargaining process that led to its formation, and the compliance with statutory provisions. The Commission found that the agreement was genuinely a collective agreement and was made in good faith. However, it identified certain provisions concerning penalty rates as problematic. After carefully reviewing these provisions, the FWC determined that some of them were not in compliance with the Act. Ultimately, the FWC approved the agreement with some modifications to the contested provisions, ensuring they met the legal standards required under the Fair Work Act.

The final orders of the FWC were that the Tuscan Applied Finishes Pty Ltd T/A Wall-Tech and CFMEU Union Collective Agreement 2015-2019 be approved with the specified modifications to the penalty rate provisions. This decision balanced the need to support genuine collective bargaining while ensuring compliance with statutory requirements.

Construction, Forestry, 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