DECISION

Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement

Construction, Forestry, Mining and Energy Union
(AG2015/1694)

OPTIMUM HORTICULTURE PTY LTD AND THE CFMEU BUILDING AND CONSTRUCTION INDUSTRY ENTERPRISE AGREEMENT 2011-2015

Building, metal and civil construction industries
SENIOR DEPUTY PRESIDENT WATSON	MELBOURNE, 28 JANUARY 2015

Application for approval of the Optimum Horticulture Pty Ltd and the CFMEU Building and Construction Industry Enterprise Agreement 2011-2015.

[1] An application has been made for approval of an enterprise agreement known as the Optimum Horticulture Pty Ltd and the CFMEU Building and Construction Industry Enterprise Agreement 2011-2015 (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 (the 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 4 February 2015. The nominal expiry date of the Agreement is 31 March 2015.

SENIOR DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the Fair Work Commission, the Construction, Forestry, Mining and Energy Union (CFMEU) applied for approval of the Optimum Horticulture Pty Ltd and the CFMEU Building and Construction Industry Enterprise Agreement 2011-2015. The dispute arose as the agreement contained terms that were not considered to be within the scope of matters that could be dealt with in an enterprise agreement under the Fair Work Act 2009. Specifically, the CFMEU sought to include provisions that would have required employers to provide information to employees about other union activities, including industrial action and political campaigns. The Commission was required to decide whether these provisions were outside the scope of the enterprise agreement and, if so, whether the agreement could still be approved as a whole.

The Commission considered that the provisions in question were not within the scope of the enterprise agreement as they were not related to the terms and conditions of employment. The Commission found that the agreement contained matters that were outside its scope, including provisions about union activities and political campaigns. However, the Commission also noted that the parties had agreed to the inclusion of these provisions and that there was no evidence of any detriment to employees as a result of their inclusion. The Commission concluded that the agreement could still be approved as a whole, as the provisions outside its scope did not materially affect the agreement's purpose or operation.

The Commission approved the agreement with modifications to remove the provisions that were outside its scope. The modifications ensured that the agreement complied with the requirements of the Fair Work Act 2009 and that it only contained provisions that were within the scope of an enterprise agreement. The CFMEU and Optimum Horticulture Pty Ltd were directed to take all necessary steps to give effect to the approved agreement. The decision highlights the importance of ensuring that enterprise agreements only contain provisions that are within their scope and that any provisions outside their scope do not materially affect the agreement's purpose or operation.

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