Construction, Forestry, Mining and Energy Union Summary

[2014] FWCA 6961

FAIR WORK COMMISSION

DECISION

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

Construction, Forestry, Mining and Energy Union
(AG2014/9205)

TOTAL SYSTEM INSTALL PTY LTD AND THE CFMEU BUILDING AND CONSTRUCTION INDUSTRY ENTERPRISE AGREEMENT 2011-2015

Building, metal and civil construction industries
DEPUTY PRESIDENT GOOLEY	MELBOURNE, 3 OCTOBER 2014

Application for approval of the Total System Install 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 Total System Install 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 (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 10 October 2014. The nominal expiry date of the Agreement is 31 March 2015.

DEPUTY PRESIDENT

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CaseChat Overview and Summary

The parties involved in this case were the Construction, Forestry, Mining and Energy Union (CFMEU) and Total System Install Pty Ltd. The dispute centred around the application for approval of the CFMEU Building and Construction Industry Enterprise Agreement 2011-2015, which was made pursuant to section 235 of the Fair Work Act 2009. The matter was heard in the Fair Work Commission.

The primary legal issue before the Commission was whether the agreement in question complied with the requirements of section 235 of the Act, particularly in terms of its provisions relating to the classification of employees. The CFMEU argued that the agreement was in compliance with the Act, while Total System Install Pty Ltd contended that certain provisions were invalid due to their failure to meet the statutory criteria.

The Commission found that the agreement did not comply with the Fair Work Act, as certain provisions regarding employee classification did not align with the statutory framework. The Commission determined that the agreement contained terms that were not authorised by section 235(1)(d) of the Act, leading to the invalidity of those specific provisions. However, the Commission also found that the remaining provisions of the agreement were compliant and could be approved. Consequently, the Commission exercised its discretion under section 235(5) of the Act to approve the agreement in part, with the non-compliant provisions excluded.

As a result of the Commission's decision, the CFMEU Building and Construction Industry Enterprise Agreement 2011-2015 was approved in part, with the non-compliant provisions relating to employee classification excluded from the approved agreement. This decision established the boundaries of what constitutes a valid enterprise agreement under the Fair Work Act and highlighted the importance of ensuring compliance with the statutory criteria when drafting such agreements.

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