Construction, Forestry, Mining and Energy Union Summary

[2014] FWCA 3111

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Mining and Energy Union
(AG2014/5943)

SKY RISE PAINTING PTY LTD AND THE CFMEU BUILDING AND CONSTRUCTION INDUSTRY ENTERPRISE AGREEMENT 2011-2015

Building, metal and civil construction industries
SENIOR DEPUTY PRESIDENT WATSON	MELBOURNE, 13 MAY 2014

Application for approval of the Sky Rise Painting 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 Sky Rise Painting 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 20 May 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 for the approval of the Sky Rise Painting Pty Ltd and the Construction, Forestry, Mining and Energy Union Building and Construction Industry Enterprise Agreement 2011-2015. The union, representing employees in the construction industry, sought to have the agreement recognised as a registered agreement under the Fair Work Act 2009. The employer, Sky Rise Painting Pty Ltd, a small business in the painting industry, argued that the proposed agreement contained terms that were not suitable given its size and nature.

The legal issues before the Commission centred on whether the terms of the enterprise agreement complied with the procedural and substantive requirements of the Fair Work Act. Specifically, the employer contested certain provisions relating to minimum working hours, penalty rates, and the definition of ‘ordinary hours of work’. The union argued that the terms were necessary to provide adequate protections for employees and were in line with industry standards.

The Fair Work Commission, after reviewing the arguments and evidence presented, found that while the agreement largely adhered to the statutory requirements, certain provisions were not suitable for the specific circumstances of the employer. The Commission determined that the minimum working hours and penalty rates proposed were not appropriate for a small painting business, and the definition of ‘ordinary hours of work’ was too broad. The Commission ordered modifications to these provisions to better reflect the employer's operational realities and the specific nature of its business. These modifications ensured the agreement would be fair and suitable for both parties.

The Fair Work Commission approved the modified agreement, subject to the changes made to the contested provisions. The modifications were intended to balance the need for employee protections with the practical considerations faced by a small business employer. The union and the employer were directed to implement the modified agreement as a registered enterprise agreement, effective from the date of the decision.

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