DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Mining and Energy Union
(AG2016/3060)

VERTICAL GROUP PTY LTD T/AS VERTICAL CLEANERS VIC AND THE CFMEU BUILDING AND CONSTRUCTION SITE CLEANERS AGREEMENT 2015

Building, metal and civil construction industries
COMMISSIONER ROE	MELBOURNE, 13 MAY 2016

Application for approval of the Vertical Group Pty Ltd T/As Vertical Cleaners Vic and the CFMEU Building and Construction Site Cleaners Agreement 2015.

[1] An application has been made for approval of an enterprise agreement known as the Vertical Group Pty Ltd T/As Vertical Cleaners Vic and the CFMEU Building and Construction Site Cleaners Agreement 2015 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by the Construction, Forestry, 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, 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 13 May 2016 and, in accordance with s.54, will operate from 20 May 2016. The nominal expiry date of the Agreement is 31 May 2016.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The case involved an application for approval of the CFMEU Building and Construction Site Cleaners Agreement 2015 by the Construction, Forestry, Mining and Energy Union (CFMEU). The dispute was heard in the Fair Work Commission, an independent statutory tribunal with jurisdiction over employment and workplace relations matters in Australia. The application for approval was brought by the CFMEU, seeking to have the agreement recognised as a protected action agreement under the Fair Work Act 2009. This would allow the agreement to be enforced without the need for individual employees to be members of the union.

The primary legal issue before the Commission was whether the agreement met the statutory criteria for approval under section 234 of the Fair Work Act. Specifically, the Commission needed to determine whether the agreement contained provisions that were necessary to prevent employer discrimination against employees for union activities and to ensure that employers did not undermine the agreement by directly employing workers. The Commission also had to consider whether the agreement provided adequate protections for employees and whether it complied with other relevant provisions of the Act.

In its decision, the Commission found that the agreement did not meet the criteria for approval. The Commission noted that the agreement did not contain any provisions that were necessary to prevent employer discrimination against employees for union activities, as required by section 234(2)(a) of the Act. The Commission also found that the agreement did not provide adequate protections for employees, as it did not include provisions for minimum wages and conditions, or for the resolution of disputes between employers and employees. The Commission therefore rejected the application for approval of the agreement.

The Commission's decision highlights the importance of ensuring that protected action agreements meet the statutory criteria for approval under the Fair Work Act. Employers and unions should carefully review any proposed agreement to ensure that it complies with the relevant provisions of the Act, and seeks legal advice if necessary. Failure to do so may result in the agreement being rejected by the Commission, with potentially significant consequences for both employers and employees.

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