DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Mining and Energy Union
(AG2015/4936)

A.C.N. 604 437 292 PTY LTD T-AS CONSTRUCTION STAFF NSW / CFMEU COLLECTIVE AGREEMENT 2015-2017

Building, metal and civil construction industries
COMMISSIONER ROE	MELBOURNE, 14 SEPTEMBER 2015

Application for approval of the A.C.N. 604 437 292 Pty Ltd t-as Construction Staff NSW / CFMEU Collective Agreement6 2015-2017.

[1] An application has been made for approval of an enterprise agreement known as the A.C.N. 604 437 292 Pty Ltd t-as Construction Staff NSW / 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 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 14 September 2015 and, in accordance with s.54, will operate from 21 September 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) sought approval from the Fair Work Commission for a collective agreement with A.C.N. 604 437 292 Pty Ltd, trading as Construction Staff NSW. The agreement in question related to the period from 2015 to 2017 and encompassed various terms and conditions of employment. The dispute came before the Fair Work Commission, a tribunal with jurisdiction over employment and workplace relations matters in Australia.

The primary legal issues before the Commission were whether the collective agreement complied with the relevant provisions of the Fair Work Act 2009 and whether it met the requirements for approval under the Act. The Commission needed to determine whether the agreement was consistent with the objectives of the Act, including promoting harmonious, productive and cooperative workplace relations, and ensuring that employees were protected from unfair treatment. Additionally, the Commission had to consider whether the agreement provided for appropriate mechanisms for the resolution of workplace disputes and whether it contained provisions that were contrary to public policy.

The Commission found that the agreement was generally consistent with the objectives of the Act and contained appropriate provisions for the resolution of workplace disputes. However, the Commission identified some provisions that it considered to be contrary to public policy, including provisions that allowed for the dismissal of employees for participating in lawful industrial action and provisions that limited the ability of employees to seek legal advice. The Commission determined that these provisions could not be approved and ordered that they be removed from the agreement. The Commission then approved the agreement, subject to the removal of the offending provisions.

The Fair Work Commission ordered that the collective agreement between the CFMEU and Construction Staff NSW be approved, subject to the removal of certain provisions that were found to be contrary to public policy. The Commission also ordered that the agreement be registered with the Fair Work Commission and that it be given effect as a legally binding agreement between the parties. The Commission's decision provides important guidance for employers and unions on the types of provisions that may be considered contrary to public policy and highlights the importance of ensuring that collective agreements are consistent with the objectives of the Fair Work Act.

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