Construction, Forestry, Mining and Energy Union Summary

[2013] FWCA 9621

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Mining and Energy Union
(AG2013/11791)

WINDOWS ARE US PTY LTD AND THE CFMEU BUILDING AND CONSTRUCTION INDUSTRY ENTERPRISE AGREEMENT 2011-2015

Building, metal and civil construction industries
SENIOR DEPUTY PRESIDENT WATSON	MELBOURNE, 9 DECEMBER 2013

Application for approval of the Windows Are Us Pty Ltd and the CFMEU Building and Construction Industry Enterprise Agreement 2011-2015.

[1] An application has been made for approval of an enterprise agreement known as the Windows Are Us Pty Ltd and the CFMEU Building and Construction 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 16 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 involved the Construction, Forestry, Mining and Energy Union (CFMEU) and Windows Are Us Pty Ltd, with the Fair Work Commission (FWC) reviewing the application for approval of the Windows Are Us Pty Ltd and the CFMEU Building and Construction Industry Enterprise Agreement 2011-2015. The dispute centred on whether the agreement complied with the relevant legislation, particularly the Fair Work Act 2009, and if it contained provisions that were fair and reasonable. The FWC was tasked with assessing the agreement under the requirements of the Fair Work Act, ensuring it met the necessary criteria for approval and did not contain unfair or unreasonable terms.

The primary legal issues before the FWC were whether the agreement satisfied the statutory requirements for approval and whether any of its provisions were unfair or unreasonable. This included examining whether the agreement contained provisions that met the 'better-off-overall test' and whether it complied with the Fair Work Act's provisions regarding unfair dismissal and redundancy. The FWC also needed to determine if the agreement appropriately balanced the interests of both the employer and employees, particularly in terms of wages, conditions, and dispute resolution mechanisms.

In reaching its decision, the FWC conducted a thorough analysis of the agreement, reviewing each clause and its implications for the parties involved. The FWC concluded that while the agreement generally met the statutory requirements, certain provisions were found to be unfair and unreasonable. These provisions were primarily related to the terms for redundancy payments, which the FWC deemed overly restrictive and not in line with the best interests of the employees. Consequently, the FWC did not approve the agreement as it stood, but rather directed the parties to negotiate and amend the offending provisions. The FWC emphasised the importance of achieving a fair balance in enterprise agreements and highlighted the need for parties to consider the broader implications of their agreements on employees' rights and protections.

The final orders included the rejection of the agreement due to the identified unfair provisions, with instructions for the parties to renegotiate the terms relating to redundancy payments. The FWC mandated that any revised agreement must address the identified issues and be submitted for approval, ensuring it met the statutory requirements and was fair and reasonable. The decision underscored the importance of careful drafting and negotiation in enterprise agreements to avoid provisions that could be deemed unfair or unreasonable by the FWC.

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