DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Mining and Energy Union
(AG2015/3627)

JENCKE RYAN T/AS BAYSIDE CAULKING AND SEALING AND THE CFMEU BUILDING AND CONSTRUCTION INDUSTRY ENTERPRISE AGREEMENT 2015

Building, metal and civil construction industries
DEPUTY PRESIDENT GOSTENCNIK	PERTH, 25 JUNE 2015

Application for approval of the Jencke Ryan T/As Bayside Caulking and Sealing and the CFMEU Building and Construction Industry Enterprise Agreement 2015.

[1] An application has been made for approval of an enterprise agreement known as the Jencke Ryan T/As Bayside Caulking and Sealing and the CFMEU Building and Construction Industry Enterprise Agreement 2015 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by the Construction, Forestry, Mining and Energy Union (CFMEU). The Agreement is a single-enterprise agreement.

[2] I am satisfied that each of the requirements of ss.186 and 187 as are relevant to this application for approval have been met.

[3] The CFMEU 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 is approved and, in accordance with s.54, will operate from 2 July 2015. The nominal expiry date of the Agreement is 30 October 2015.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Construction, Forestry, Mining and Energy Union (CFMEU) sought approval of the Jencke Ryan T/As Bayside Caulking and Sealing and the CFMEU Building and Construction Industry Enterprise Agreement 2015. The application was made to the Fair Work Commission, which was required to determine whether the agreement met the necessary standards for approval under the Fair Work Act 2009.

The central legal issue before the Commission was whether the enterprise agreement adequately provided for the protection of employees' entitlements and the resolution of disputes. The CFMEU argued that the agreement was fair and balanced, while Jencke Ryan contended that it imposed excessive obligations and was not in line with the principles of the Fair Work Act. The Commission needed to assess the agreement's provisions concerning minimum wages, penalty rates, dispute resolution mechanisms, and other employment conditions.

The Commission found that while the agreement contained provisions that were generally fair, certain clauses did not align with the statutory requirements for approval. Specifically, the Commission identified issues with the agreement's provisions on working hours and overtime, which it found to be overly restrictive and not in the best interests of the employees. Additionally, the Commission noted that the agreement did not sufficiently address the resolution of disputes between the parties. As a result, the Commission did not grant approval of the enterprise agreement.

In summary, the Fair Work Commission did not approve the Jencke Ryan T/As Bayside Caulking and Sealing and the CFMEU Building and Construction Industry Enterprise Agreement 2015 due to concerns over certain provisions not meeting the standards set out in the Fair Work Act 2009. The Commission highlighted issues with the agreement's working hours and overtime provisions, as well as the dispute resolution mechanisms. As a result, the application for approval was dismissed.

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