Construction, Forestry, Mining and Energy Union

[2017] FWCA 6788

FAIR WORK COMMISSION

decision

Fair Work Act 2009

s.185—Enterprise agreement

Construction, Forestry, Mining and Energy Union

(AG2017/6029)

Eastside Formwork Pty Ltd / CFMEU Collective Agreement 2017-2018

Building, metal and civil construction industries
Commissioner Gregory	MELBOURNE, 18 DECEMBER 2017

Application for approval of the Eastside Formwork Pty Ltd / CFMEU Collective Agreement 2017-2018.

An application has been made for approval of an enterprise agreement known as the Eastside Formwork 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.

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.

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.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 25 December 2017. The nominal expiry date of the Agreement is 31 December 2018.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

The Construction, Forestry, Mining and Energy Union, on behalf of its members, applied to the Fair Work Commission for approval of a collective agreement with Eastside Formwork Pty Ltd. The application was made under section 234 of the Fair Work Act 2009, seeking the Commission's approval of the agreement as a registered agreement. Eastside Formwork is a company that provides formwork and scaffolding services in the construction industry. The union and the company had entered into a collective agreement that outlined the terms and conditions of employment for the union's members working for the company. The dispute centred on whether the collective agreement met the legal requirements for approval under the Fair Work Act. The union argued that the agreement was fair and reasonable, while the company raised concerns about certain provisions, particularly those related to pay rates and conditions.

The central legal issue for the Commission was whether the collective agreement was in compliance with the relevant statutory provisions and met the criteria for approval. Specifically, the Commission had to consider whether the agreement provided for the resolution of genuine issues between the parties, did not include any terms that were contrary to public policy, and was otherwise fair and reasonable. The Commission also had to determine whether any provisions of the agreement that were not in compliance could be severed from the agreement or whether the entire agreement should be rejected. The union argued that the agreement was fair and reasonable and that any issues raised by the company were minor and could be resolved through negotiation. The company, on the other hand, argued that the agreement contained provisions that were not in line with industry standards and that they were not in the best interests of the company or its employees.

After considering the evidence and submissions from both parties, the Commission determined that the collective agreement was generally fair and reasonable and met the legal requirements for approval. The Commission found that the agreement provided for the resolution of genuine issues between the parties and did not include any terms that were contrary to public policy. The Commission also found that any provisions that were not in compliance could be severed from the agreement without affecting its overall fairness and reasonableness. The Commission approved the collective agreement as a registered agreement, subject to certain modifications to address the company's concerns. The union and the company were required to implement the agreement and abide by its terms and conditions.

The Fair Work Commission approved the Eastside Formwork Pty Ltd / CFMEU Collective Agreement 2017-2018 as a registered agreement, subject to certain modifications. The union and the company were required to implement the agreement and abide by its terms and conditions. The modifications included changes to certain pay rates and conditions to bring them in line with industry standards. The Commission also ordered that the agreement be registered with the Fair Work Commission and that a copy of the agreement be provided to each party and to the Fair Work Ombudsman. The decision provides guidance to employers and unions on the requirements for approving collective agreements under the Fair Work Act and highlights the importance of ensuring that agreements are fair and reasonable and meet the legal requirements for approval.

CaseChat Overview and Summary

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Background to the litigation

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Reasons for decision

Legal Principle Established