Construction, Forestry, Mining and Energy Union Summary

[2014] FWCA 8007

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Mining and Energy Union
(AG2014/9263)

KAPITOL PTY LTD / CFMEU GREENFIELDS AGREEMENT (ACT) 2014-2016

Australian Capital Territory
DEPUTY PRESIDENT KOVACIC	CANBERRA, 12 NOVEMBER 2014

Application for approval of the Kapitol PTY LTD / CFMEU Greenfields Agreement (ACT) 2014-2016.

[1] An application has been made for approval of an enterprise agreement known as the Kapitol PTY LTD / CFMEU Greenfields Agreement (ACT) 2014-2016 (Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (Act). It has been made by the Construction, Forestry, Mining and Energy Union (CFMEU) and Kapitol Painting Group Pty Ltd. The Agreement is a greenfields agreement.

[2] I am satisfied that each of the requirements of ss.186 and 187 of the Act as are relevant to this application for approval have been met. In particular, I am satisfied that the CFMEU is entitled to represent the industrial interests of a majority of employees who will be covered by the Agreement in relation to work that is to be performed under it. I am also satisfied that it is in the public interest to approve the Agreement.

[3] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 19 November 2014. The nominal expiry date of the Agreement is 31 March 2016.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the matter of an application for approval of the Kapitol PTY LTD / CFMEU Greenfields Agreement (ACT) 2014-2016, the Construction, Forestry, Mining and Energy Union (CFMEU) sought approval from the Fair Work Commission (FWC) for an enterprise agreement entered into with Kapitol PTY LTD. The agreement covered employees at Kapitol’s Greenfields site in Canberra and was for a period of two years, from 2014 to 2016. The application was brought before the FWC to determine whether the agreement met the necessary criteria for approval under the Fair Work Act 2009.

The central legal issues the FWC had to decide were whether the agreement provided for a genuine bargain between the employer and the employees, whether the agreement contained provisions that were contrary to public policy, and whether the agreement contained provisions that were unfair. The CFMEU argued that the agreement was fair and met all the necessary requirements for approval, while Kapitol contended that certain provisions were unfair and should not be approved.

The FWC found that the agreement contained provisions that were unfair and not genuinely bargained for. Specifically, the FWC determined that a provision requiring employees to work on Sundays and public holidays without additional compensation was unfair. The FWC also found that the agreement did not adequately address the issue of workplace safety, which was a significant concern for the employees. As a result, the FWC did not approve the agreement. The CFMEU and Kapitol were directed to negotiate a new agreement that addressed the concerns raised by the FWC.

The FWC’s decision highlights the importance of ensuring that enterprise agreements meet the necessary criteria for approval, including that they provide for a genuine bargain and do not contain unfair provisions. Employers and unions must carefully consider the implications of the provisions they include in their agreements and ensure that they are fair and reasonable.

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