Construction, Forestry, Mining and Energy Union

[2014] FWCA 2638

FAIR WORK COMMISSION

DECISION

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

Construction, Forestry, Mining and Energy Union
(AG2014/5673)

BREAKER BROTHERS CONTRACTING PTY LTD AND THE CFMEU BUILDING AND CONSTRUCTION INDUSTRY ENTERPRISE AGREEMENT 2011-2015

Building, metal and civil construction industries
SENIOR DEPUTY PRESIDENT WATSON	MELBOURNE, 22 APRIL 2014

Application for approval of the Breaker Brothers Contracting 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 Breaker Brothers Contracting 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 29 April 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 the Construction, Forestry, Mining and Energy Union (CFMEU) for the approval of the Breaker Brothers Contracting Pty Ltd and the CFMEU Building and Construction Industry Enterprise Agreement 2011-2015. The application was contested by Breaker Brothers, which raised objections regarding the terms of the agreement. The Commission was tasked with determining whether the agreement met the statutory requirements for approval under the Fair Work Act 2009.

The central legal issue before the Commission was whether the enterprise agreement contained terms that were contrary to the Fair Work Act's "better off overall test" (BOOT). This test requires that employees be no worse off financially and generally better off overall under the agreement. Breaker Brothers argued that certain provisions of the agreement did not meet this test, while the CFMEU contended that the agreement was fair and reasonable, meeting all statutory requirements. The Commission also needed to assess whether the agreement complied with other relevant provisions of the Fair Work Act.

In its decision, the Commission examined the specific terms of the agreement and considered the submissions from both parties. The Commission found that the agreement did not meet the BOOT as some employees were not better off overall under the agreement. Additionally, the Commission determined that certain provisions of the agreement contravened the Act by imposing excessive conditions on employees. Consequently, the Commission refused the application for approval of the enterprise agreement.

The Commission's final orders included the refusal of approval for the Breaker Brothers Contracting Pty Ltd and the CFMEU Building and Construction Industry Enterprise Agreement 2011-2015. The Commission directed that the agreement would not be approved until such time as it complied with the statutory requirements of the Fair Work Act. The parties were given an opportunity to negotiate and revise the agreement to meet the necessary standards before resubmitting it for approval.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established