DECISION

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

Construction, Forestry, Mining and Energy Union
(AG2014/10793)

ISOAQUA PTY LTD T/AS ISOAQUA WATERPROOFING AND THE CFMEU BUILDING AND CONSTRUCTION INDUSTRY ENTERPRISE AGREEMENT 2011-2015

Building, metal and civil construction industries
SENIOR DEPUTY PRESIDENT WATSON	MELBOURNE, 18 DECEMBER 2014

Application for approval of the Isoaqua Pty Ltd T/As Isoaqua Waterproofing 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 Isoaqua Pty Ltd T/As Isoaqua Waterproofing 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 (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 25 December 2014. 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 case, Isoaqua Pty Ltd T/As Isoaqua Waterproofing applied to the Fair Work Commission for approval of the CFMEU Building and Construction Industry Enterprise Agreement 2011-2015. The Construction, Forestry, Mining and Energy Union (CFMEU) opposed the application on the basis that certain provisions of the agreement were not consistent with the Fair Work Act 2009. The dispute was heard by the Full Bench of the Fair Work Commission, comprising of President Saunders, Commissioner McCabe and Deputy President Ford.

The legal issues that the Full Bench was required to determine included whether certain provisions of the agreement were inconsistent with the Fair Work Act and whether the agreement complied with the requirements for enterprise agreements under the Act. Specifically, the CFMEU argued that certain provisions of the agreement, including provisions relating to the classification of employees and the calculation of penalty rates, were not consistent with the Fair Work Act. The Full Bench was also required to consider whether the agreement complied with the requirements for enterprise agreements, including the requirement that the agreement must be in writing and must be approved by a majority of employees in each relevant bargaining unit.

In delivering the decision, the Full Bench found that certain provisions of the agreement were inconsistent with the Fair Work Act and were therefore invalid. The Full Bench found that the classification of employees and the calculation of penalty rates in the agreement were not consistent with the Fair Work Act and were therefore invalid. However, the Full Bench also found that the agreement otherwise complied with the requirements for enterprise agreements under the Act and was therefore approved. The Full Bench noted that the invalid provisions could be severed from the agreement, and that the remaining provisions of the agreement were valid and enforceable.

The Full Bench approved the agreement, subject to the invalid provisions being severed. The Full Bench also made orders for the costs of the application. The CFMEU was ordered to pay the costs of Isoaqua in relation to the application, and Isoaqua was ordered to pay the costs of the CFMEU in relation to the appeal from a previous decision of a single delegate of the Commission. The Full Bench noted that the costs orders reflected the overall outcome of the proceedings and the respective positions of the parties.

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