Construction, Forestry, Mining and Energy Union

[2014] FWCA 4930

FAIR WORK COMMISSION

DECISION

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

Construction, Forestry, Mining and Energy Union
(AG2014/6870)

ROSPRY FLOORING PTY LTD AND THE CFMEU BUILDING AND CONSTRUCTION INDUSTRY ENTERPRISE AGREEMENT 2011-2015

Building, metal and civil construction industries
SENIOR DEPUTY PRESIDENT WATSON	MELBOURNE, 23 JULY 2014

Application for approval of the Rospry Flooring 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 Rospry Flooring 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 30 July 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 applicant, the Construction, Forestry, Mining and Energy Union (CFMEU), sought approval of an enterprise agreement for the building and construction industry in relation to Rospry Flooring Pty Ltd. The application was made to the Fair Work Commission under the Fair Work Act 2009. The dispute arose from disagreements between the parties over certain provisions of the proposed agreement, which was intended to regulate the terms and conditions of employment for workers in the building and construction industry.

The central legal issues before the Commission involved the interpretation and application of specific provisions of the Fair Work Act and the Fair Work Regulations. The CFMEU argued that the agreement should be approved as it contained terms and conditions that were fair and reasonable, and that it had been negotiated in good faith. Conversely, the employer contended that certain provisions of the agreement were unfair and should not be approved. The Commission had to determine whether the agreement complied with the statutory requirements for approval and whether it met the criteria of being fair and reasonable.

The Fair Work Commission assessed the agreement against the legislative framework provided by the Fair Work Act and the Fair Work Regulations. It found that the majority of the provisions in the agreement were fair and reasonable, and that the negotiation process had been conducted in good faith. However, the Commission identified certain provisions that did not meet the statutory requirements, particularly in relation to the classification of employees and the determination of penalty rates. The Commission exercised its discretion to modify these provisions to ensure compliance with the Act and Regulations. As a result, the Commission approved the agreement with the modifications, finding that it was fair and reasonable on the whole.

The Fair Work Commission's final orders included the approval of the Rospry Flooring Pty Ltd and the CFMEU Building and Construction Industry Enterprise Agreement 2011-2015, with modifications to certain provisions regarding employee classification and penalty rates. The modifications were made to ensure that the agreement met the statutory requirements for approval and was fair and reasonable. The Commission's decision was based on a detailed analysis of the agreement's provisions and the applicable legislative framework.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established