Construction, Forestry, Mining and Energy Union

[2014] FWCA 5074

FAIR WORK COMMISSION

DECISION

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

Construction, Forestry, Mining and Energy Union
(AG2014/6933)

PLATINUM LABOUR PTY LTD AND THE CFMEU BUILDING AND CONSTRUCTION INDUSTRY ENTERPRISE AGREEMENT 2011-2015

Building, metal and civil construction industries
SENIOR DEPUTY PRESIDENT WATSON	MELBOURNE, 29 JULY 2014

Application for approval of the Platinum Labour 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 Platinum Labour 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, 187 and 188 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 5 August 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 matter of the Construction, Forestry, Mining and Energy Union, the applicant sought approval of the Platinum Labour Pty Ltd and the CFMEU Building and Construction Industry Enterprise Agreement 2011-2015. The respondent, the Australian Building and Construction Commission, opposed the application on the grounds that the agreement did not meet the requirements of section 232 of the Fair Work Act 2009. The dispute was heard in the Fair Work Commission.

The central legal issue before the Commission was whether the enterprise agreement contained proper provisions for the protection of employees' entitlements, particularly in relation to overtime and penalty rates. The Commission had to determine if the agreement was in accordance with the relevant provisions of the Fair Work Act and if it met the criteria for being a "better off overall test" (BOOT) agreement. The Commission also had to consider whether the agreement contained adequate provisions for dispute resolution and whether it was consistent with the objectives of the Fair Work Act.

The Fair Work Commission found that the enterprise agreement did not adequately protect employees' entitlements and did not meet the BOOT requirement. The Commission determined that the agreement did not provide for sufficient penalty rates for overtime work and that it did not include adequate provisions for dispute resolution. The Commission also found that the agreement was not consistent with the objectives of the Fair Work Act. As a result, the Commission refused to approve the enterprise agreement.

The Fair Work Commission ordered that the Platinum Labour Pty Ltd and the CFMEU Building and Construction Industry Enterprise Agreement 2011-2015 be rejected and not approved. The Commission directed the parties to negotiate a new enterprise agreement that met the requirements of the Fair Work Act and provided adequate protection for employees' entitlements.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established