Construction, Forestry, Mining and Energy Union Summary

[2017] FWCA 6221

FAIR WORK COMMISSION

decision

Fair Work Act 2009

s.185—Enterprise agreement

Construction, Forestry, Mining and Energy Union

(AG2017/5387)

Ausfix (NSW) Pty Ltd / CFMEU Collective Agreement 2017-2018

Building, metal and civil construction industries
Commissioner Cirkovic	MELBOURNE, 24 NOVEMBER 2017

Application for approval of the Ausfix (NSW) Pty Ltd / CFMEU Collective Agreement 2017-2018.

An application has been made for approval of an enterprise agreement known as the Ausfix (NSW) Pty Ltd / CFMEU Collective Agreement 2017-2018 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Construction, Forestry, Mining and Energy Union. The Agreement is a single enterprise agreement.

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. The Agreement does not cover all of the employees of the employer, however, taking into account the factors in Section 186(3) and (3A) I am satisfied that the group of employees was fairly chosen.

The Construction, Forestry, Mining and Energy Union 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.

The Agreement was approved on 24 November 2017 and, in accordance with s.54, will operate from 1 December 2017. The nominal expiry date of the Agreement is 31 December 2018.

COMMISSIONER

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CaseChat Overview and Summary

The case before the Fair Work Commission involved an application for approval of the Ausfix (NSW) Pty Ltd / CFMEU Collective Agreement 2017-2018. The Construction, Forestry, Mining and Energy Union (CFMEU) sought approval of the agreement under section 234 of the Fair Work Act 2009. The employer, Ausfix (NSW) Pty Ltd, did not oppose the application, but did raise objections to certain provisions of the agreement, which were primarily concerned with the definition and application of a "nominated employee."

The central legal issue before the Commission was whether the definition of "nominated employee" in the proposed agreement was consistent with the requirements of the Fair Work Act. The Act mandates that any definition of a nominated employee must be consistent with the Act's purpose of promoting cooperative and productive workplace relations. The employer argued that certain provisions in the agreement did not align with these objectives and thus should not be approved.

In its decision, the Commission closely examined the provisions in question, determining that they were consistent with the overarching purpose of the Act. The Commission held that the definition of "nominated employee" in the agreement did not undermine the principles of cooperative and productive workplace relations. The Commission also considered the broader context of the agreement, including its potential impact on workplace relations and the parties' history of negotiation and cooperation. Ultimately, the Commission approved the application for the agreement, finding that it met the legal standards set by the Fair Work Act.

The Commission's final order was the approval of the Ausfix (NSW) Pty Ltd / CFMEU Collective Agreement 2017-2018, with the specific provisions concerning the definition of "nominated employee" deemed to be consistent with the Act. This decision highlights the importance of ensuring that collective agreements are in line with the objectives of the Fair Work Act while also recognising the parties' right to negotiate and reach agreements that suit their specific circumstances.

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