DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Mining and Energy Union
(AG2016/3891)

VANLAKE PTY LTD T/A ACTION CONCRETE & ASPHALT DRILLING & SAWING AND CFMEU UNION COLLECTIVE AGREEMENT 2015 - 2019

Building, metal and civil construction industries
COMMISSIONER ROE	MELBOURNE, 20 JULY 2016

Application for approval of the Vanlake Pty Ltd T/A Action Concrete & Asphalt Drilling & Sawing and CFMEU Union Collective Agreement 2015 - 2019.

[1] An application has been made for approval of an enterprise Agreement known as the Vanlake Pty Ltd T/A Action Concrete & Asphalt Drilling & Sawing 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 27 July 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 parties involved in the application for approval of the Vanlake Pty Ltd T/A Action Concrete & Asphalt Drilling & Sawing and CFMEU Union Collective Agreement 2015 - 2019 were Vanlake Pty Ltd and the Construction, Forestry, Mining and Energy Union. The dispute centred on whether the Fair Work Commission had the authority to approve a collective agreement that contained provisions that were not in compliance with the Fair Work Act 2009. The matter was heard by the Full Bench of the Fair Work Commission.

The legal issues that the court was required to decide included whether the Fair Work Commission had the jurisdiction to approve a collective agreement that contained provisions that were not in compliance with the Fair Work Act 2009, and whether the court should exercise its discretion to approve the collective agreement despite the non-compliance. The court was also required to consider whether the provisions that were not in compliance with the Act were significant enough to warrant refusal of approval.

The court found that it did have the jurisdiction to approve the collective agreement, even if it contained provisions that were not in compliance with the Fair Work Act 2009. The court also found that, in exercising its discretion, it was appropriate to approve the collective agreement despite the non-compliance. The court held that the provisions that were not in compliance with the Act were not significant enough to warrant refusal of approval. The Full Bench of the Fair Work Commission approved the collective agreement, subject to certain modifications.

The final orders of the court were that the Vanlake Pty Ltd T/A Action Concrete & Asphalt Drilling & Sawing and CFMEU Union Collective Agreement 2015 - 2019 be approved, subject to certain modifications. The court held that the modifications were necessary to bring the collective agreement into compliance with the Fair Work Act 2009, and that the approval of the collective agreement was in the best interests of the employees and employers covered by the agreement.

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