DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Mining and Energy Union
(AG2016/994)

DOWELL’S BUILDING SERVICES PTY LTD (TRAFFIC CONTROL) AND CFMEU UNION COLLECTIVE AGREEMENT 2015 - 2019

Building, metal and civil construction industries
COMMISSIONER ROE	MELBOURNE, 5 MAY 2016

Application for approval of the Dowell’s Building Services Pty Ltd (Traffic Control) and CFMEU Union Collective Agreement 2015 - 2019.

[1] An application has been made for approval of an enterprise agreement known as the Dowell’s Building Services Pty Ltd (Traffic Control) and CFMEU Union Collective Agreement 2015 - 2019 (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 5 May 2016 and, in accordance with s.54, will operate from 12 May 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 this matter were Dowell’s Building Services Pty Ltd and the Construction, Forestry, Mining and Energy Union (CFMEU). The dispute related to the approval of a collective agreement between the two parties for the period of 2015 to 2019. The case was heard in the Fair Work Commission (FWC), Australia’s independent national workplace relations tribunal. The CFMEU sought approval of the collective agreement, while Dowell’s Building Services Pty Ltd contested certain provisions within the agreement.

The legal issues the court was required to decide included whether the provisions within the collective agreement were fair and reasonable, and if they complied with the relevant legislation, namely the Fair Work Act 2009. The court also had to determine if the agreement adequately covered the terms and conditions of employment for the employees covered by the agreement. Furthermore, the court had to assess whether the agreement provided for a fair and reasonable method of resolving disputes between the employer and employees.

In reaching its decision, the FWC considered the submissions from both parties, along with relevant case law and legislative provisions. The court determined that most of the provisions within the collective agreement were fair and reasonable, and in compliance with the relevant legislation. However, the FWC found that certain provisions related to the calculation of overtime and penalty rates were not fair and reasonable. Consequently, these provisions were not approved. The FWC also found that the agreement provided an adequate framework for the terms and conditions of employment, and a fair and reasonable method of resolving disputes. Overall, the FWC approved the majority of the collective agreement, with the exception of the aforementioned provisions.

The final orders of the FWC were that the Dowell’s Building Services Pty Ltd (Traffic Control) and CFMEU Union Collective Agreement 2015 - 2019 be approved, subject to the modifications made by the FWC in relation to the calculation of overtime and penalty rates.

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