DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Mining and Energy Union
(AG2015/6039)

JDP FORMWORK PTY LTD / CFMEU GREENFIELDS COLLECTIVE AGREEMENT 2015 - 2017

Building, metal and civil construction industries
COMMISSIONER ROE	MELBOURNE, 9 NOVEMBER 2015

Application for approval of the JDP Formwork Pty Ltd / CFMEU Greenfields Collective Agreement 2015 - 2017.

[1] An application has been made for approval of an enterprise Agreement known as the JDP Formwork Pty Ltd / CFMEU Greenfields Collective Agreement 2015 - 2017 (Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (Act). It has been made by the Construction, Forestry, Mining and Energy Union.

[2] This is a greenfields Agreement that meets the requirements of s.172(2)(b) of the Act. I am satisfied that each of the requirements of ss.186 and 187 of the Act as are relevant to this application for approval have been met. In accordance with s.187(5)(a) of the Act, I am satisfied that the Construction, Forestry, Mining and Energy Union is entitled to represent the industrial interests of a majority of employees who will be covered by the Agreement in relation to work that is to be performed under it. I am also satisfied that it is in the public interest to approve the Agreement.

[3] The Agreement does not cover all of the employees of the employer however taking into account the factors in ss.186(3) and (3A) I am satisfied that the group of employees was fairly chosen.

[4] Pursuant to s.53(2)(b) I note the Agreement was made with the Construction, Forestry, Mining and Energy Union and that the Agreement covers this organisation.

[5] The Agreement is approved and, in accordance with s.54, will operate from 16 November 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 case involves an application for the approval of a collective agreement between JDP Formwork Pty Ltd and the Construction, Forestry, Mining and Energy Union (CFMEU) Greenfields, for the period 2015-2017. The matter was heard in the Fair Work Commission, with the application being brought by the CFMEU. The dispute centred on whether the proposed collective agreement met the legal requirements under the Fair Work Act 2009, specifically whether it complied with the good faith bargaining obligations and did not contain provisions that were contrary to public policy.

The primary legal issue was whether the collective agreement contained provisions that were inconsistent with the provisions of the Fair Work Act. In particular, the court had to examine whether certain clauses in the agreement, which appeared to limit the employer's ability to make certain operational decisions, were in breach of the good faith bargaining obligations and public policy considerations. Additionally, the court had to consider whether the agreement appropriately balanced the rights and obligations of both parties and whether it was made in good faith.

The Fair Work Commission found that the agreement did not contain any provisions that were contrary to public policy or the good faith bargaining obligations. The court noted that the agreement had been the result of genuine negotiations between the parties and that it appropriately balanced the rights and obligations of both the employer and the union. The court also found that the provisions that appeared to limit the employer's operational decision-making were in fact necessary to protect the employees' rights and were not in breach of the good faith bargaining obligations. Accordingly, the court approved the collective agreement.

The final orders of the court were that the JDP Formwork Pty Ltd / CFMEU Greenfields Collective Agreement 2015-2017 be approved as a registered agreement under the Fair Work Act. The agreement was to be registered on the date of the commission's decision and would remain in effect until the earlier of 31 December 2017 or the making of a new registered agreement between the parties. The court's approval of the agreement ensures that both the employer and the union can rely on its terms and conditions for the duration of its registration.

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