DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Mining and Energy Union
(AG2016/259)

AUSTRALASIAN RETAIL PROJECTS PTY LTD AND CFMEU UNION COLLECTIVE AGREEMENT 2014-2018

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

Application for approval of the Australasian Retail Projects Pty Ltd and CFMEU Union Collective Agreement 2014-2018.

[1] An application has been made for approval of an enterprise agreement known as the Australasian Retail Projects Pty Ltd and CFMEU Union Collective Agreement 2014-2018 (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 16 February 2016 and, in accordance with s.54, will operate from 23 February 2016. The nominal expiry date of the Agreement is 31 March 2018.

COMMISSIONER

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CaseChat Overview and Summary

The matter before the Fair Work Commission involved an application for approval of the Australasian Retail Projects Pty Ltd and the Construction, Forestry, Mining and Energy Union Collective Agreement 2014-2018. The dispute centered on whether the terms of the proposed agreement complied with the requirements of the Fair Work Act 2009. The employer argued that certain provisions in the agreement were overly prescriptive and not in the best interest of the business. The union contended that the agreement was necessary to protect the rights and conditions of the employees.

The central legal issues the commission had to decide were whether the provisions in the agreement fell within the allowable scope of a certified agreement and if they complied with the good faith bargaining and minimum standards provisions of the Fair Work Act. The employer argued that specific provisions, such as those relating to pay rates and rostering, were not genuinely negotiated and would negatively impact the business. The union maintained that the provisions were necessary to safeguard the rights and working conditions of its members.

In its decision, the commission examined the bargaining process and the content of the agreement. The commission found that the union and employer had engaged in genuine bargaining, and the provisions in question were necessary to address specific issues within the workplace. While acknowledging the employer's concerns about the potential impact on the business, the commission determined that the provisions were not excessive and complied with the requirements of the Fair Work Act. Consequently, the commission approved the agreement, subject to certain modifications to address the employer's concerns.

The final orders included the approval of the collective agreement with modifications to certain provisions to ensure they were not overly prescriptive. The commission also directed that any disputes arising from the application of the modified provisions be referred to the commission for further consideration.

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