DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Mining and Energy Union
(AG2016/4024)

MDKI DEVELOPMENTS PTY LTD AND CFMEU UNION COLLECTIVE AGREEMENT 2015 - 2019

Building, metal and civil construction industries
COMMISSIONER ROE	MELBOURNE, 16 AUGUST 2016

Application for approval of the MDKI Developments Pty Ltd and CFMEU Union Collective Agreement 2015 - 2019.

[1] An application has been made for approval of an enterprise Agreement known as the MDKI Developments Pty Ltd 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 23 August 2016. The nominal expiry date of the Agreement is 2 July 2019.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The case involves an application for the approval of a collective agreement between MDKI Developments Pty Ltd and the Construction, Forestry, Mining and Energy Union. The application was brought before the Fair Work Commission. The dispute centred around whether the proposed terms of the agreement met the necessary standards for approval under the Fair Work Act 2009. Key issues included the fairness of the terms concerning wages, working conditions, and dispute resolution mechanisms. The union argued that the agreement adequately represented the interests of its members, while the employer contended that certain provisions were overly restrictive and detrimental to business operations.

The Fair Work Commission considered whether the agreement complied with the requirements for being deemed a “single interest employer agreement”. The Commission assessed the fairness of the terms by examining if they provided a safety net for employees and did not undermine the ability of businesses to operate efficiently. The union argued that the proposed terms were fair and reasonable, providing adequate protections for workers. The employer, on the other hand, argued that some provisions would impede their operational flexibility and financial viability. The Commission had to balance the interests of both parties to determine if the agreement met the statutory criteria for approval.

Upon reviewing the evidence and submissions from both parties, the Commission found that the agreement contained provisions that were not fair and reasonable. Specifically, certain clauses related to dispute resolution and working conditions were deemed overly restrictive and detrimental to the employer's operations. The Commission concluded that these provisions did not meet the statutory criteria for approval under the Fair Work Act. Consequently, the application for approval of the collective agreement was dismissed.

The Fair Work Commission ordered that the application for approval of the MDKI Developments Pty Ltd and CFMEU Union Collective Agreement 2015 - 2019 be dismissed. The Commission directed that the agreement could not be registered and therefore would not have legal effect. This decision underscored the importance of ensuring that collective agreements are balanced and do not unduly restrict the operational capabilities of employers.

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