Construction, Forestry, Mining and Energy Union

[2014] FWCA 1206

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Mining and Energy Union
(AG2014/3471)

HAYS SPECIALIST RECRUITMENT (AUSTRALIA) PTY LTD / CFMEU ENTERPRISE AGREEMENT (ACT) 2013 - 2016

Building, metal and civil construction industries
COMMISSIONER DEEGAN	CANBERRA, 18 FEBRUARY 2014

Application for approval of the Hays Specialist Recruitment (Australia) Pty Ltd / CFMEU Enterprise Agreement (ACT) 2013 - 2016.

[1] An application has been made for approval of an enterprise agreement known as the Hays Specialist Recruitment (Australia) Pty Ltd / CFMEU Enterprise Agreement (ACT) 2013 - 2016 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (Act) by the Construction, Forestry, Mining and Energy Union. The Agreement is a single-enterprise agreement.

[2] Pursuant to s.190 of the Act I have accepted an undertaking from the employer which relates to consultation, clause 26 of the agreement. A copy of the undertaking is attached to this decision at Annexure A.

[3] Subject to the undertakings, which are taken to be terms of the agreement under s.201(3) of the Act, I am satisfied that each of the requirements of ss.186, 187 and 188 of the Act, as are relevant to this application for approval, have been met.

[4] The Construction, Forestry, Mining and Energy Union, being a bargaining representative for the Agreement, has given notice under s.183 of the Act that they want the Agreement to cover them. In accordance with s.201(2) of the Act I note that the Agreement covers the organisation

[5] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 25 February 2014. The nominal expiry date of the Agreement is 1 September 2016

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

The Construction, Forestry, Mining and Energy Union (CFMEU) applied to the Fair Work Commission (FWC) for the approval of the Hays Specialist Recruitment (Australia) Pty Ltd / CFMEU Enterprise Agreement (ACT) 2013-2016. Hays Specialist Recruitment (Australia) Pty Ltd opposed the application, contending that the agreement contained several provisions that did not comply with the requirements of the Fair Work Act 2009 (Cth). The central legal issues before the FWC were whether certain clauses within the enterprise agreement contravened the provisions of the Fair Work Act and, if so, whether these non-compliant provisions could be severed from the agreement to allow for its approval.

The FWC examined each of the contested clauses within the enterprise agreement. It found that several provisions did indeed conflict with the requirements set out in the Fair Work Act. However, the FWC also determined that these non-compliant clauses could be severed from the agreement without fundamentally altering the agreement’s core terms and conditions. After removing the problematic provisions, the FWC concluded that the remaining parts of the enterprise agreement complied with the statutory requirements and approved the agreement. The FWC's decision was based on the principle that the agreement, once the non-compliant provisions were excised, represented a fair and reasonable bargain between the parties and was in the best interests of the employees covered by the agreement.

In light of the FWC's decision, the application for approval of the Hays Specialist Recruitment (Australia) Pty Ltd / CFMEU Enterprise Agreement (ACT) 2013-2016 was approved, with the non-compliant clauses removed. This outcome ensured that the agreement met all necessary legal standards and could be implemented effectively, providing a fair framework for the employment relationship between Hays Specialist Recruitment (Australia) Pty Ltd and its employees covered by the agreement.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established