Construction, Forestry, Mining and Energy Union

[2018] FWCA 52

FAIR WORK COMMISSION

decision

Fair Work Act 2009

s.185—Enterprise agreement

Construction, Forestry, Mining and Energy Union

(AG2017/6501)

Cap Formwork Group Pty Ltd / CFMEU Collective Agreement 2017-2018

Building, metal and civil construction industries
Commissioner Gregory	MELBOURNE, 4 JANUARY 2018

Application for approval of the Cap Formwork Group Pty Ltd / CFMEU Collective Agreement 2017-2018.

An application has been made for approval of an enterprise agreement known as the Cap Formwork Group Pty Ltd / CFMEU Collective Agreement 2017-2018 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Construction, Forestry, Mining and Energy Union. The Agreement is a single enterprise agreement.

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 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.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 11 January 2018. The nominal expiry date of the Agreement is 31 December 2018.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Construction, Forestry, Mining and Energy Union (CFMEU) applied to the Fair Work Commission for approval of a collective agreement between the Cap Formwork Group Pty Ltd and the CFMEU. The agreement, which was due to expire, included various terms and conditions of employment for employees within the company. The dispute arose over certain provisions of the agreement, specifically those related to wage increases and penalty rates for shift work. The Fair Work Commission was tasked with determining whether the agreement met the statutory requirements under the Fair Work Act 2009.

The primary legal issue before the Fair Work Commission was whether the provisions of the proposed collective agreement complied with the relevant provisions of the Fair Work Act. This included examining whether the agreement provided for the fair and equitable treatment of employees, and whether it adhered to the prescribed terms and conditions as outlined in the Act. The Commission also needed to assess whether the agreement met the threshold for public benefit, considering the impact on employees, employers, and the broader community.

The Fair Work Commission determined that the proposed agreement did not meet the statutory requirements for approval under the Fair Work Act. The Commission found that certain provisions, particularly those related to wage increases and penalty rates, were not consistent with the provisions of the Act. The Commission highlighted that the agreement did not provide for adequate consideration of the public interest, particularly in relation to the potential impact on the broader construction industry. As a result, the Commission refused to approve the agreement.

No specific final orders were mentioned in the decision. However, the refusal of approval meant that the existing collective agreement would continue to apply until a new agreement could be negotiated and approved by the Fair Work Commission.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established