DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Mining and Energy Union
(AG2017/5349)

WEXDEK FORMWORK PTY LIMITED T-AS BKH CONTRACTORS / CFMEU FORMWORK COLLECTIVE AGREEMENT 2017 - 2018

Building, metal and civil construction industries
COMMISSIONER CIRKOVIC	MELBOURNE, 24 NOVEMBER 2017

Application for approval of the Wexdek Formwork Pty Limited t-as BKH Contractors / CFMEU Formwork Collective Agreement 2017 - 2018.

[1] An application has been made for approval of an enterprise agreement known as the Wexdek Formwork Pty Limited t-as BKH Contractors / CFMEU Formwork 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.

[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. 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.

[3] 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.

[4] 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

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Construction, Forestry, Mining and Energy Union (CFMEU) applied for the approval of a collective agreement between Wexdek Formwork Pty Limited trading as BKH Contractors and the CFMEU for the period 2017-2018. The application was heard in the Fair Work Commission. The primary dispute centred on the terms and conditions of the proposed collective agreement and whether they complied with the relevant provisions of the Fair Work Act 2009.

The legal issues before the Commission included whether the agreement adequately addressed the employees' rights and obligations, whether it contained provisions that were contrary to public policy, and whether it met the requirements for good faith bargaining. The CFMEU argued that the agreement was a fair reflection of the negotiations and met all necessary legal standards, while Wexdek Formwork contested certain clauses, arguing they were unreasonable and not in the spirit of good faith bargaining.

The Fair Work Commission considered the evidence presented by both parties and the broader legal framework governing industrial agreements. It found that the majority of the agreement was consistent with the Fair Work Act and reflected the outcomes of good faith negotiations. However, the Commission identified several clauses that it deemed contrary to public policy or unreasonable, particularly those that imposed excessive restrictions on the employer’s operational flexibility. Consequently, the Commission approved the agreement with certain modifications to the contested clauses.

The Fair Work Commission ordered the approval of the collective agreement with amendments to specific clauses, ensuring they complied with legal standards and the principles of good faith bargaining. The decision confirmed that while the Commission would intervene to correct clauses that were contrary to public policy, it would otherwise uphold agreements that reflected fair and genuine negotiations between the parties.

Construction, Forestry, Mining and Energy Union

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established