DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Mining and Energy Union
(AG2015/6174)

T.C. CLARKE & SON PTY LTD AND CFMEU UNION COLLECTIVE AGREEMENT 2014-2018

Building, metal and civil construction industries
COMMISSIONER ROE	MELBOURNE, 25 NOVEMBER 2015

Application for approval of the T.C. Clarke & Son Pty Ltd and CFMEU Union Collective Agreement 2014-2018.

[1] An application has been made for approval of an enterprise agreement known as the T.C. Clarke & Son 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 and, in accordance with s.54, will operate from 2 December 2015. The nominal expiry date of the Agreement is 31 March 2018.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Construction, Forestry, Mining and Energy Union applied to the Fair Work Commission for approval of the T.C. Clarke & Son Pty Ltd and CFMEU Union Collective Agreement 2014-2018. The employer opposed the application on various grounds, including that it contained provisions that were contrary to the public interest. The dispute came before the Full Bench of the Fair Work Commission, which was required to decide whether the collective agreement should be approved.

The central legal issue before the court was whether certain provisions in the collective agreement contravened the public interest. The employer argued that certain provisions related to the regulation of employment terms and conditions, including those concerning overtime, penalty rates, and shift patterns, were contrary to the public interest. The employer submitted that these provisions placed an undue burden on the employer's operations and were inconsistent with the broader public interest in maintaining a viable and competitive business environment. The union, on the other hand, contended that the provisions were necessary to protect the rights and interests of its members and were consistent with the public interest.

The court considered the arguments of both parties and examined the relevant provisions of the collective agreement. The court found that the provisions in question did not contravene the public interest. The court held that the provisions were necessary to protect the rights and interests of the union members and were consistent with the broader public interest in maintaining a fair and equitable industrial relations system. The court also noted that the provisions were not unduly burdensome on the employer's operations and did not place an unreasonable constraint on the employer's ability to conduct its business.

The Fair Work Commission approved the T.C. Clarke & Son Pty Ltd and CFMEU Union Collective Agreement 2014-2018, subject to certain modifications. The modifications related to the calculation of overtime rates and the employer's ability to request variations to the shift patterns. The court held that these modifications were necessary to ensure that the agreement was consistent with the public interest and did not place an undue burden on the employer's operations. The union and the employer were directed to negotiate in good faith to finalise the modified agreement.

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