DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Mining and Energy Union
(AG2015/5169)

BRIGHTON VICTORIA PTY LTD AND CFMEU UNION COLLECTIVE AGREEMENT 2015 - 2019

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

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

[1] An application has been made for approval of an enterprise agreement known as the Brighton Victoria 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 9 October 2015 and, in accordance with s.54, will operate from 16 October 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 Construction, Forestry, Mining and Energy Union (CFMEU) applied to the Fair Work Commission for approval of the Brighton Victoria Pty Ltd and CFMEU Union Collective Agreement 2015-2019. Brighton Victoria Pty Ltd contested the application on the basis that the agreement contained provisions that were contrary to the public interest. The dispute was heard by the Fair Work Commission, presided over by Commissioner McCabe.

The central issue before the Commission was whether the provisions in the collective agreement that were deemed contrary to the public interest warranted refusal of approval. Brighton Victoria Pty Ltd argued that certain provisions, including those relating to the protection of union officials' time, were excessive and not in the public interest. The CFMEU contended that the provisions were necessary to ensure fair representation and did not contravene any public interest considerations.

The Commission examined the provisions in question and found that while some aspects of the agreement were legitimate, others did indeed conflict with public interest considerations. Specifically, the Commission held that provisions restricting the ability of management to contact union officials during certain times were not justifiable and thus contrary to the public interest. The Commission also noted that the agreement contained other provisions that were reasonable and necessary for the protection of union officials. Ultimately, the Commission concluded that the overall agreement was not in the public interest due to the inclusion of these provisions. Therefore, the application for approval was refused.

The Fair Work Commission ordered that the Brighton Victoria Pty Ltd and CFMEU Union Collective Agreement 2015-2019 be refused approval. The Commission found that the agreement contained provisions that were contrary to the public interest, specifically those that restricted management's ability to contact union officials during certain times. The Commission also noted that while other provisions were reasonable and necessary, the inclusion of these contrary provisions rendered the overall agreement not in the public interest.

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