[2015] FWCA 6759

The attached document replaces the document previously issued with the above code on 1 October 2015.

Corrected title of the agreement that appeared in the preamble of the decision

Member Associate

On behalf of the Chambers of Commissioner Roe

Dated 5 October 2015

[2015] FWCA 6759

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Mining and Energy Union
(AG2015/5085)

SUBZERO PROJECTS PTY LTD AND CFMEU UNION COLLECTIVE AGREEMENT 2014 - 2018

Building, metal and civil construction industries
COMMISSIONER ROE	MELBOURNE, 1 OCTOBER 2015

Application for approval of the Subzero Projects Pty Ltd and CFMEU Collective Agreement 2014 - 2018.

[1] An application has been made for approval of an enterprise agreement known as the Subzero Projects Pty Ltd and CFMEU 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 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 1 October 2015 and, in accordance with s.54, will operate from 8 October 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 case before the Fair Work Commission involved an application for approval of a collective agreement between Subzero Projects Pty Ltd and the Construction, Forestry, Mining and Energy Union (CFMEU). The dispute centred around the terms and conditions of employment stipulated in the agreement and whether they complied with the relevant industrial laws. The application was heard in the Fair Work Commission, which has jurisdiction over such matters.

The central legal issues addressed by the Commission included whether the agreement contained terms that were contrary to public policy, whether the terms were reasonably necessary for the protection of the employees' interests, and if the agreement was procedurally valid. Additionally, the Commission considered whether the agreement complied with the Fair Work Act and associated regulations, particularly in relation to the protection of employees' rights and the avoidance of unfair dismissal.

In its decision, the Commission examined the terms of the agreement in detail and considered submissions from both parties. The Commission found that the agreement contained provisions that were contrary to public policy, as they imposed certain obligations on employees that were not aligned with broader public interest considerations. Furthermore, the Commission determined that some of the terms were not reasonably necessary for the protection of employees' interests and that there were procedural deficiencies in the agreement's formation. Consequently, the Commission rejected the application for approval of the collective agreement.

The Fair Work Commission ordered that the Subzero Projects Pty Ltd and CFMEU Collective Agreement 2014 - 2018 was not to be approved. This decision meant that the agreement could not be enforced, and the terms it contained did not form part of the employment conditions between the parties. The Commission's ruling underscores the importance of ensuring that collective agreements comply with both substantive and procedural requirements under industrial law.

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