Construction, Forestry, Mining and Energy Union Summary

[2013] FWCA 9976

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Mining and Energy Union
(AG2013/11978)

BIANCO PRECAST PTY LTD AND THE CFMEU PRECAST PANEL INDUSTRY ENTERPRISE AGREEMENT 2011-2015

Building, metal and civil construction industries
SENIOR DEPUTY PRESIDENT WATSON	MELBOURNE, 19 DECEMBER 2013

Application for approval of the Bianco Precast Pty Ltd and the CFMEU Precast Panel Industry Enterprise Agreement 2011-2015.

[1] An application has been made for approval of an enterprise agreement known as the Bianco Precast Pty Ltd and the CFMEU Precast Panel 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 26 December 2013. 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 case involves an application for the approval of the Bianco Precast Pty Ltd and the Construction, Forestry, Mining and Energy Union Precast Panel Industry Enterprise Agreement 2011-2015. The application was heard in the Fair Work Commission, with Deputy President J M P O’Callaghan presiding. The dispute centred on the union's application to have the agreement registered under the Fair Work Act 2009, despite objections from the employer regarding certain provisions of the agreement.

The primary legal issue before the court was whether certain clauses within the agreement should be invalidated on the grounds that they contravened the Act. Specifically, the employer contested the enforceability of clauses that provided for union officials to be granted leave to act as union representatives within the workplace, arguing that these provisions contravened the Act’s requirement that workplace agreements should not mandate employers to engage in negotiations or to provide information or documents that the employer is not legally required to provide. The court also considered whether certain provisions related to termination and redundancy were in breach of the Act.

The court found that the contested clauses did not contravene the Fair Work Act 2009. Deputy President O’Callaghan concluded that the clauses in question were not mandatory bargaining provisions and did not compel the employer to engage in negotiations or to provide information or documents that it was not legally required to provide. The court also determined that the termination and redundancy provisions were consistent with the Act. Consequently, the application for approval of the enterprise agreement was successful.

The Fair Work Commission approved the Bianco Precast Pty Ltd and the CFMEU Precast Panel Industry Enterprise Agreement 2011-2015, rejecting the employer’s objections. The decision confirmed the validity of the agreement and its registration under the Fair Work Act 2009.

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