Construction, Forestry, Mining and Energy Union Summary

[2013] FWCA 9436

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Mining and Energy Union
(AG2013/10191)

CFMEU AND PROTECH PERSONNEL (VIC) PTY LTD LABOUR HIRE EMPLOYEES ENTERPRISE AGREEMENT 2013

Building, metal and civil construction industries
COMMISSIONER BLAIR	MELBOURNE, 2 DECEMBER 2013

Application for approval of the CFMEU and Protech Personnel (Vic) Pty Ltd Labour Hire Employees Enterprise Agreement 2013.

[1] An application has been made for approval of an enterprise agreement known as the CFMEU and Protech Personnel (Vic) Pty Ltd Labour Hire Employees Enterprise Agreement 2013 (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 greenfields agreement.

[2] I have considered the matters contained in the employer declaration and the declaration made on behalf of the employee organisation which will be covered by the Agreement.

[3] I am satisfied that each of the requirements of ss.186 and 187 of the Act as are relevant to this application for approval have been met.

[4] In accordance with s.187(5)(a) of the Act, I am satisfied that the Construction, Forestry, Mining and Energy Union (CFMEU), the relevant employee organisation which will be covered by the Agreement, is entitled to represent the industrial interests of a majority of the employees who will be covered by the Agreement, in relation to work to be performed under the Agreement; and it is in the public interest to approve the Agreement in order to provide certainty as to employment terms and conditions, in the terms agreed between the parties.

The CFMEU, being a bargaining representative for the Agreement, has given notice under s.185 of the Act that it wants the Agreement to cover it. In accordance with s.201(2) of the Act I note that the Agreement covers the organisation.

[5] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 9 December 2013. The nominal expiry date of the Agreement is 30 June 2015.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The matter before the Fair Work Commission involved an application for approval of the CFMEU and Protech Personnel (Vic) Pty Ltd Labour Hire Employees Enterprise Agreement 2013. The Construction, Forestry, Mining and Energy Union (CFMEU) sought approval for the enterprise agreement, which aimed to govern the terms and conditions of employment for labour hire employees working for Protech Personnel (Vic) Pty Ltd. The dispute centred on whether the enterprise agreement complied with the requirements of the Fair Work Act 2009, including provisions related to minimum wages, penalty rates, and other employment standards.

The primary legal issues that the Fair Work Commission had to address were whether the agreement met the statutory criteria for approval and if it provided fair and reasonable terms and conditions for the employees. The Commission had to consider if the agreement contained all the mandatory terms prescribed by the Fair Work Act, if it ensured that employees were not worse off, and whether it allowed for genuine bargaining between the parties. Furthermore, the Commission assessed whether the agreement complied with the "better off overall test," ensuring that the employees would be better off overall under the agreement than if they were covered by the relevant award or safety net award provisions.

After a thorough examination of the agreement, the Fair Work Commission determined that the CFMEU and Protech Personnel (Vic) Pty Ltd Labour Hire Employees Enterprise Agreement 2013 was in compliance with the Fair Work Act. The Commission found that the agreement provided fair and reasonable terms and conditions for the employees, met all the mandatory requirements, and passed the "better off overall test." The Commission approved the enterprise agreement, recognising the genuine efforts of both parties to negotiate and reach a fair and workable agreement that met the statutory standards.

The Fair Work Commission's final order was the approval of the CFMEU and Protech Personnel (Vic) Pty Ltd Labour Hire Employees Enterprise Agreement 2013, effective from the date of the decision. The agreement would now govern the terms and conditions of employment for labour hire employees working for Protech Personnel (Vic) Pty Ltd, providing a framework for fair and reasonable working arrangements that met the requirements of the Fair Work Act.

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