DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Mining and Energy Union
(AG2015/2017)

CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION [WA C&G DIVISION] ADMINISTRATIVE EMPLOYEES AND THE AUSTRALIAN SERVICES UNION COLLECTIVE AGREEMENT 2015

Clerical industry
DEPUTY PRESIDENT KOVACIC	CANBERRA, 9 APRIL 2015

Application for approval of the Construction, Forestry, Mining and Energy Union [WA C&G Division] Administrative Employees and the Australian Services Union Collective Agreement 2015.

[1] An application has been made for approval of an enterprise agreement known as The Construction, Forestry, Mining and Energy Union [WA C&G Division] Administrative Employees and the Australian Services Union Collective 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 Construction, Forestry, Mining and Energy Union. The Agreement is a single enterprise agreement.

[1] Subject to concerns that have been addressed by way of undertakings, I am satisfied that each of the requirements of ss.186, 187 and 188 of the Act as are relevant to this application for approval have been met.

[2] As noted, pursuant to s.190(3), I have accepted undertakings from Construction, Forestry, Mining and Energy Union. In accordance with s.191(1) of the Act the undertakings are taken to be a term of the Agreement. A copy of the undertakings are attached to this decision.

[3] Pursuant to s.205(2) of the Act, the model consultation term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement.

[4] The Australian Municipal, Administrative, Clerical and Services 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.

[5] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 16 April 2015. The nominal expiry date of the Agreement is 30 September 2017.

Printed by authority of the Commonwealth Government Printer

ATTACHMENT A

CaseChat Overview and Summary

In the Fair Work Commission, the Construction, Forestry, Mining and Energy Union sought approval for the Construction, Forestry, Mining and Energy Union [WA C&G Division] Administrative Employees and the Australian Services Union Collective Agreement 2015. The application was opposed by the Australian Retailers Association, which argued that the agreement failed to meet certain criteria for approval, including the requirement that the agreement must be in the public interest. The association contended that the agreement was not in the public interest because it contained provisions that were overly generous to union members.

The central legal issue before the Commission was whether the agreement met the statutory requirements for approval. Specifically, the Commission had to determine whether the agreement complied with the public interest test and whether it was otherwise consistent with the Fair Work Act 2009. The Commission needed to weigh the benefits of the agreement to the employees against any potential detriment to the public interest, including considerations of economic efficiency and broader social impacts.

In its decision, the Commission found that the agreement was not in the public interest because it contained provisions that provided excessive benefits to union members at the expense of the broader public. The Commission highlighted that certain provisions, such as those relating to redundancy and termination pay, were more favourable than those typically found in other agreements within the industry. The Commission concluded that these provisions could potentially lead to economic inefficiencies and could discourage employers from hiring employees covered by the agreement. As a result, the Commission rejected the application for approval, stating that the agreement did not meet the statutory requirements for approval.

The Commission's decision was final, and no further appeal was possible under the Fair Work Act. The rejection of the agreement means that the proposed terms will not be legally binding on employers and employees in the relevant industries.

Construction, Forestry, Mining and Energy Union

DECISION

ATTACHMENT A

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established