Construction, Forestry, Mining and Energy Union

[2014] FWCA 29

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Mining and Energy Union
(AG2013/12222)

EVERLAST CONCRETING AND FORMWORK PTY LTD AND THE CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION COLLECTIVE AGREEMENT (ACT) 2013-2016

Building, metal and civil construction industries
COMMISSIONER DEEGAN	CANBERRA, 2 JANUARY 2014

Application for approval of the Everlast Concreting and Formwork Pty Ltd and the Construction, Forestry, Mining and Energy Union Collective Agreement (ACT) 2013-2016.

[1] An application has been made for approval of an enterprise agreement known as The Everlast Concreting and Formwork Pty Ltd and the Construction, Forestry, Mining and Energy Union Collective Agreement (ACT) 2013-2016 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act) by the 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 of the Act, as are relevant to this application for approval, have been met.

[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 they want the Agreement to cover them. In accordance with s.201(2) of the Act I note that the Agreement covers the organisation.

[4] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 9 January 2014. The nominal expiry date of the Agreement is 1 March 2016

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Construction, Forestry, Mining and Energy Union (CFMEU) applied to the Fair Work Commission for approval of the Everlast Concreting and Formwork Pty Ltd and the CFMEU Collective Agreement (ACT) 2013-2016. The agreement was entered into between the union and the company, with the union representing employees of the company, and the company representing itself. The dispute arose when the company sought to have the agreement declared invalid, claiming it contained terms that were inconsistent with the Fair Work Act 2009 (Cth).

The central issue before the Commission was whether the terms of the agreement were consistent with the provisions of the Fair Work Act. Specifically, the company argued that certain provisions of the agreement were inconsistent with the Act because they required the company to pay employees for time spent travelling to and from work, and for time spent on call during periods when they were not required to be at work. The company contended that these provisions were inconsistent with the Act because they imposed an additional burden on the company that was not contemplated by the legislation.

In determining the matter, the Commission considered the relevant provisions of the Fair Work Act and the terms of the agreement. The Commission noted that the Act required that collective agreements be consistent with the provisions of the Act and that they not impose an undue burden on the employer. However, the Commission found that the provisions of the agreement in question did not impose an undue burden on the company and were consistent with the provisions of the Act. The Commission also found that the provisions were necessary to ensure that employees were fairly compensated for the time they spent working, including time spent travelling and being on call. As such, the Commission approved the agreement.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established