Construction, Forestry, Mining and Energy Union Summary

[2014] FWCA 8349

FAIR WORK COMMISSION

DECISION

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

Construction, Forestry, Mining and Energy Union
(AG2014/9883)

CONCORE SAWING & DRILLING PTY LTD AND THE CFMEU CONCRETE SAWING AND DRILLING ENTERPRISE AGREEMENT 2011-2015

Building, metal and civil construction industries
SENIOR DEPUTY PRESIDENT WATSON	MELBOURNE, 24 NOVEMBER 2014

Application for approval of the Concore Sawing & Drilling Pty Ltd and the CFMEU Concrete Sawing and Drilling Enterprise Agreement 2011-2015.

[1] An application has been made for approval of an enterprise agreement known as the Concore Sawing & Drilling Pty Ltd and the CFMEU Concrete Sawing and Drilling 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 1 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 Fair Work Commission, the Construction, Forestry, Mining and Energy Union (CFMEU) made an application for approval of the Concore Sawing & Drilling Pty Ltd and the CFMEU Concrete Sawing and Drilling Enterprise Agreement 2011-2015. Concore Sawing & Drilling Pty Ltd opposed the application on the basis that the agreement did not meet the requirements of section 230 of the Fair Work Act 2009 (Cth). The central issue before the court was whether the agreement complied with the criteria set out in the Act, particularly whether it facilitated, promoted or improved the productivity of the enterprise concerned.

The court examined the terms of the agreement and considered whether it met the "better off overall test" under section 173 of the Act. This involved assessing whether the agreement provided for terms and conditions that were no worse off and at least one term or condition that was better off for the employees compared to the applicable award or safety net award. The court also considered whether the agreement included provisions that were necessary to facilitate, promote or improve the productivity of the enterprise.

Ultimately, the court found that the agreement did not meet the requirements of section 230 of the Act as it did not include provisions that facilitated, promoted or improved the productivity of the enterprise. The court noted that while the agreement contained some provisions that were better off for the employees, they did not outweigh the detriment to the enterprise. Therefore, the application for approval of the agreement was dismissed.

As a result of the decision, the Concore Sawing & Drilling Pty Ltd and the CFMEU Concrete Sawing and Drilling Enterprise Agreement 2011-2015 was not approved and therefore did not become a registered agreement. The employees of Concore Sawing & Drilling Pty Ltd remained covered by the applicable award or safety net award.

Construction, Forestry, Mining and Energy Union

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established