Construction, Forestry, Mining and Energy Union

[2014] FWCA 6373

FAIR WORK COMMISSION

DECISION

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

Construction, Forestry, Mining and Energy Union
(AG2014/8895)

SG FORMWORK PTY LTD AND THE CFMEU BUILDING AND CONSTRUCTION INDUSTRY ENTERPRISE AGREEMENT 2011-2015

Building, metal and civil construction industries
SENIOR DEPUTY PRESIDENT WATSON	MELBOURNE, 12 SEPTEMBER 2014

Application for approval of the SG Formwork 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 SG Formwork 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 19 September 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

The matter before the Fair Work Commission involved an application by SG Formwork Pty Ltd for approval of the SG Formwork Pty Ltd and the Construction, Forestry, Mining and Energy Union Building and Construction Industry Enterprise Agreement 2011-2015. The union sought to have the agreement approved, while the employer argued that it was not in the best interests of the business to do so. The central legal issues revolved around whether the agreement was in the best interests of the employer's business and whether it was fair and reasonable under the relevant legislation.

The Fair Work Commission examined the evidence provided by both parties and considered the broader implications of approving the agreement. The Commission noted that the employer had provided a detailed and reasoned submission outlining its concerns about the agreement, particularly regarding its potential impact on the business's financial health and operational efficiency. The union, on the other hand, argued that the agreement was necessary to maintain fair and reasonable working conditions and that the employer's concerns were speculative and not substantiated by concrete evidence. After weighing the arguments, the Commission found that the agreement was not in the best interests of the employer's business due to the significant financial burden it would impose. The Commission also concluded that the agreement was not fair and reasonable under the legislation, given the employer's well-founded concerns about its operational impact.

Consequently, the Fair Work Commission dismissed the application for approval of the enterprise agreement. The decision highlighted the importance of considering the specific circumstances of each employer and the need for a thorough analysis of the potential impact of an agreement on the business. The Commission's reasoning underscored the balance required between maintaining fair and reasonable working conditions and ensuring that an agreement does not unduly harm the employer's business interests.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established