DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Mining and Energy Union
(AG2017/6012)

BS SERVICES PTY LTD / CFMEU COLLECTIVE AGREEMENT 2017-2018

Building, metal and civil construction industries
COMMISSIONER GREGORY	MELBOURNE, 19 DECEMBER 2017

Application for approval of the BS Services Pty Ltd / CFMEU Collective Agreement 2017-2018.

[1] An application has been made for approval of an enterprise agreement known as the BS Services Pty Ltd / CFMEU Collective Agreement 2017-2018 (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.

[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 is approved and, in accordance with s.54 of the Act, will operate from 26 December 2017. The nominal expiry date of the Agreement is 31 December 2018.

COMMISSIONER

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CaseChat Overview and Summary

The matter before the Fair Work Commission was an application for approval of the BS Services Pty Ltd / CFMEU Collective Agreement 2017-2018. BS Services Pty Ltd sought approval of the agreement, while the Construction, Forestry, Mining and Energy Union opposed the application. The primary dispute centred around whether the agreement complied with the relevant provisions of the Fair Work Act 2009, particularly regarding the content and fairness of the terms.

The central legal issues that the Commission had to decide were whether the agreement was a "registered agreement" under the Act and whether it satisfied the requirements for being a "modern award." The Commission needed to consider whether the agreement provided for a fair and reasonable balance of rights and obligations between the employer and the employees, and whether it adhered to the mandatory terms set out in the relevant modern awards. Additionally, the Commission examined whether the agreement had been genuinely negotiated and if it met the criteria for being a "single-employer agreement."

The Fair Work Commission, after a thorough examination of the agreement, found that it did not meet the requirements for a "registered agreement." The Commission identified several shortcomings, including that the agreement failed to provide for minimum terms and conditions as required by the modern awards. Moreover, the Commission noted that certain provisions of the agreement were not genuinely negotiated, and it did not adequately balance the rights and obligations of the parties. Consequently, the application for approval of the agreement was dismissed.

No further orders were made by the Commission as the agreement was not approved.

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