Construction, Forestry, Mining and Energy Union

[2013] FWCA 9417

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement

Construction, Forestry, Mining and Energy Union
(AG2013/11605)

COMMERCIAL CLADDING AUSTRALIA PTY LTD AND THE CFMEU BUILDING AND CONSTRUCTION INDUSTRY ENTERPRISE AGREEMENT 2011-2015

Building, metal and civil construction industries
SENIOR DEPUTY PRESIDENT WATSON	MELBOURNE, 3 DECEMBER 2013

Application for approval of the Commercial Cladding Australia 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 Commercial Cladding Australia 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 10 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

In the Fair Work Commission, the Construction, Forestry, Mining and Energy Union (CFMEU) applied for approval of the Commercial Cladding Australia Pty Ltd and the CFMEU Building and Construction Industry Enterprise Agreement 2011-2015. The agreement sought to regulate the terms and conditions of employment for workers employed by Commercial Cladding Australia Pty Ltd. The dispute centred on the provisions of the proposed agreement, which the employer argued were overly prescriptive and would impede their ability to manage their business effectively.

The primary legal issues before the Commission were whether the provisions of the proposed agreement were consistent with the Fair Work Act 2009 and whether they were in the interests of the employees. Specifically, the Commission had to determine if the agreement was free from any elements that might unduly restrict the employer’s operational flexibility and whether it provided fair and reasonable terms for the employees. The CFMEU argued that the provisions were necessary to protect the employees' rights and ensure fair working conditions, while the employer contended that the agreement would impose excessive constraints on their business operations.

After reviewing the submissions from both parties, the Commission found that the agreement contained several provisions that went beyond what was necessary to protect employees' rights and were overly restrictive on the employer's operational capacity. The Commission concluded that while the proposed agreement had some merit in protecting the employees, certain provisions were not in the best interests of the employees or the employer. As a result, the Commission decided not to approve the agreement in its current form. The Commission directed the parties to return to the negotiating table to revise the agreement to address the identified concerns.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established