DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Mining and Energy Union
(AG2015/3514)

K & D TRAFFIC MANAGEMENT PTY LTD AND CFMEU UNION COLLECTIVE AGREEMENT 2015-2019

Building, metal and civil construction industries
DEPUTY PRESIDENT GOSTENCNIK	MELBOURNE, 14 AUGUST 2015

Application for approval of the K & D Traffic Management Pty Ltd and CFMEU Union Collective Agreement 2015-2019.

[1] An application has been made for approval of an enterprise agreement known as the K & D Traffic Management 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] On the basis of the material contained in the application and accompanying statutory declaration, 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.

[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) and based on the statutory declaration provided by the organisation, I note that the Agreement covers the organisation.

[4] The Agreement was approved on 14 August 2015 and, in accordance with s.54, will operate from 21 August 2015. The nominal expiry date of the Agreement is 2 July 2019.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The case involves the Construction, Forestry, Mining and Energy Union (CFMEU) and K & D Traffic Management Pty Ltd, who sought approval for their Collective Agreement 2015-2019. The application was lodged in the Fair Work Commission, which was tasked with determining whether the agreement met the necessary criteria for approval under the Fair Work Act 2009.

The central legal issue before the Commission was whether the proposed agreement complied with the provisions of the Fair Work Act, particularly in relation to the requirement that the agreement must not have the purpose, or have the effect, of reducing or restricting the right of employees to direct industrial action. The CFMEU argued that certain clauses in the agreement could potentially restrict their members' rights to engage in lawful industrial action.

The Commission examined the text of the agreement and considered the broader context of industrial relations in Australia. It assessed whether the clauses in question had the potential to impact the right of employees to take industrial action. The Commission concluded that while the agreement contained provisions that could be seen as influencing the manner in which industrial action could be conducted, they did not explicitly restrict the right to engage in such action. Therefore, the agreement did not contravene the statutory requirements.

The Commission approved the application for the Collective Agreement 2015-2019, recognising that while some provisions may influence the conduct of industrial action, they did not restrict the fundamental right to engage in such action. The approval was contingent upon the parties adhering to the terms as outlined in the agreement.

Construction, Forestry, Mining and Energy Union

DECISION

CaseChat Overview and Summary

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Background to the litigation

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Legal Principle Established