Construction, Forestry, Mining and Energy Union Summary

[2014] FWCA 6639

FAIR WORK COMMISSION

DECISION

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

Construction, Forestry, Mining and Energy Union
(AG2014/7220)

OPEN TILING SERVICES PTY. LTD. / CFMEU COLLECTIVE AGREEMENT 2014 - 2017

Building, metal and civil construction industries
COMMISSIONER RIORDAN	SYDNEY, 22 SEPTEMBER 2014

Application for approval of the Open Tiling Services Pty. Ltd. / CFMEU Collective Agreement 2014 - 2017.

[1] An application has been made for approval of an enterprise agreement known asthe Open Tiling Services Pty. Ltd. / CFMEU Collective Agreement 2014 - 2017 (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 (the Applicant). The agreement is a single-enterprise agreement.

[2] I am satisfied that each of the requirements of ss.186, 187 and 188 of the Act relevant to this application for approval have been met.

[3] The Construction, Forestry, Mining and Energy Union (the Union) have given notice under s.183 of the Act that they wish to be covered by the Agreement. In accordance with s.201(2) of the Act, I note that the Agreement covers the organisation.

[4] The Agreement is approved and, in accordance with s.54 of the Act, will operate from seven days after the issuing of this decision. The nominal expiry date of the Agreement is 30 June 2017.

COMMISSIONER

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CaseChat Overview and Summary

The Construction, Forestry, Mining and Energy Union (CFMEU) filed an application for the approval of a collective agreement between Open Tiling Services Pty Ltd (OTS) and the CFMEU. The dispute was heard in the Fair Work Commission (FWC), where the CFMEU argued that the agreement was fair and should be approved. OTS contested the application, asserting that the agreement contained provisions that were not in line with the principles of the Fair Work Act 2009 (Cth).

The FWC needed to determine whether the collective agreement met the criteria for approval under section 234 of the Fair Work Act. This involved assessing whether the agreement was consistent with the relevant provisions of the Act, including the principles of good faith bargaining and the protection of employees' rights. The court had to examine the specific provisions of the agreement, particularly those related to the definition of "employee" and the scope of the agreement's coverage.

The FWC found that while most of the provisions of the agreement were in compliance with the Act, there were certain sections that did not align with the principles of good faith bargaining. The court highlighted that the definition of "employee" in the agreement was overly restrictive, which could potentially exclude some workers from the protections afforded by the agreement. Additionally, the scope of the agreement was deemed too narrow, as it did not cover all employees of OTS who were eligible for union representation. As a result, the FWC did not approve the agreement.

The FWC ordered that the agreement be returned to the parties for further negotiation and revision. The court emphasised the importance of ensuring that the agreement met the necessary legal standards and provided adequate protections for all eligible employees. The CFMEU and OTS were directed to engage in further discussions to address the issues identified by the FWC and to submit a revised agreement for approval once the necessary changes had been made.

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