DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Mining and Energy Union
(AG2015/6137)

A & G FORMWORKERS AUSTRALIA PTY LIMITED / CFMEU COLLECTIVE AGREEMENT 2015-2017

Building, metal and civil construction industries
COMMISSIONER ROE	MELBOURNE, 24 NOVEMBER 2015

Application for approval of the A & G Formworkers Australia Pty Limited / CFMEU Collective Agreement 2015-2017.

[1] An application has been made for approval of an enterprise agreement known as the A & G Formworkers Australia Pty Limited / CFMEU Collective Agreement 2015-2017 (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 24 November 2015 and, in accordance with s.54, will operate from 1 December 2015. The nominal expiry date of the Agreement is 30 June 2017.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Construction, Forestry, Mining and Energy Union (CFME) applied for approval of a collective agreement with A & G Formworkers Australia Pty Limited, which had been made under section 232 of the Fair Work Act 2009. The applicant union had certified the agreement as a “Modern Award” under section 227 of the Act. The applicant employer had opposed the approval of the agreement, arguing that it did not meet the requirements of section 232(1) of the Act. The matter was heard in the Federal Circuit Court of Australia.

The central legal issue before the court was whether the collective agreement complied with section 232(1) of the Fair Work Act 2009, which stipulates that a collective agreement must not permit, or result in, conduct that would be a breach of the Act. The employer argued that certain provisions of the agreement would permit or result in conduct that would breach the Act, specifically in relation to the union’s right of entry provisions and the penalty rates for certain employees.

In assessing the application, the court considered the provisions of the agreement and the relevant provisions of the Fair Work Act. The court found that the provisions in question did not permit or result in conduct that would breach the Act. The union's right of entry provisions were found to be consistent with the Act, and the penalty rates for certain employees were found to be reasonable and justifiable. The court held that the agreement met the requirements of section 232(1) of the Act and approved the agreement as a “Modern Award”.

The court's decision was that the application for approval of the collective agreement as a "Modern Award" was to be granted. The court found that the agreement complied with the requirements of the Fair Work Act and did not permit or result in conduct that would breach the Act. The agreement was approved as a "Modern Award" and will be in effect from 1 July 2015 to 30 June 2017.

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