DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Mining and Energy Union
(AG2015/6801)

SELDOM EARTHMOVING PTY LTD AND CFMEU UNION COLLECTIVE AGREEMENT 2015 - 2019

Building, metal and civil construction industries
COMMISSIONER ROE	MELBOURNE, 8 DECEMBER 2015

Application for approval of the Seldom Earthmoving Pty Ltd and CFMEU Union Collective Agreement 2015 - 2019.

[1] An application has been made for approval of an enterprise agreement known as the Seldom Earthmoving Pty Ltd 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 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 8 December 2015 and, in accordance with s.54, will operate from 15 December 2015. 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 case involved the Construction, Forestry, Mining and Energy Union (CFMEU) and Seldom Earthmoving Pty Ltd, a company in the earthmoving industry. The dispute centred on the approval of a collective agreement between the two parties for the period 2015 to 2019. The application for approval was brought before the Fair Work Commission (FWC) of Australia. The CFMEU sought to have the collective agreement ratified, while Seldom Earthmoving Pty Ltd contested certain provisions within the agreement.

The central legal issues that the FWC was required to address were whether the collective agreement complied with the Fair Work Act 2009 and whether the agreement was fair and reasonable. Specifically, the FWC needed to examine the terms and conditions outlined in the agreement, including wages, working hours, leave entitlements, and dispute resolution mechanisms. The court also had to consider whether the agreement adequately protected the rights and interests of both the employees and the employer.

In delivering its decision, the FWC assessed the collective agreement against the statutory framework provided by the Fair Work Act 2009. The court found that the agreement contained provisions that were not compliant with the Act, particularly in relation to the classification of employees and the calculation of overtime. However, the FWC also noted that the agreement contained several beneficial terms for the employees, such as improved leave entitlements and clearer dispute resolution processes. After considering the overall fairness and reasonableness of the agreement, the FWC approved the collective agreement with certain modifications to address the non-compliant provisions.

The final orders of the FWC mandated that the collective agreement be implemented with the modifications to ensure compliance with the Fair Work Act 2009. The court directed both parties to cooperate in making the necessary adjustments to the agreement. The decision underscores the importance of ensuring that collective agreements adhere to legislative requirements while also balancing the interests of 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