Construction, Forestry, Mining and Energy Union

[2013] FWCA 9222

FAIR WORK COMMISSION

DECISION

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

Construction, Forestry, Mining and Energy Union
(AG2013/11511)

AUS-RACK INSTALLATIONS PTY LTD AND THE CFMEU BUILDING AND CONSTRUCTION INDUSTRY ENTERPRISE AGREEMENT 2011-2015

Building, metal and civil construction industries
SENIOR DEPUTY PRESIDENT WATSON	MELBOURNE, 22 NOVEMBER 2013

Application for approval of the Aus-Rack Installations 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 Aus-Rack Installations 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 29 November 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 Aus-Rack Installations Pty Ltd and the CFMEU Building and Construction Industry Enterprise Agreement 2011-2015. The application was opposed by Aus-Rack Installations Pty Ltd, which argued that the agreement contained provisions that were contrary to the objects of the Fair Work Act 2009.

The legal issues before the Commission involved the validity of certain provisions in the enterprise agreement. Specifically, Aus-Rack Installations Pty Ltd contended that certain clauses in the agreement, which related to the terms and conditions of employment, were not consistent with the provisions of the Fair Work Act. The Commission needed to determine whether these provisions were indeed contrary to the Act and, if so, whether they could be separated from the rest of the agreement.

The Fair Work Commission examined the provisions in question and considered whether they were contrary to the objects of the Fair Work Act. After careful analysis, the Commission found that some of the provisions in the agreement did indeed conflict with the Act. However, the Commission also determined that these provisions could be severed from the rest of the agreement, which contained valid provisions that did not contravene the Act. Consequently, the application for approval was granted with the offending provisions removed.

As a result of the Commission's decision, the Aus-Rack Installations Pty Ltd and the CFMEU Building and Construction Industry Enterprise Agreement 2011-2015 was approved with the invalid provisions excluded. The remaining provisions of the agreement, which did not conflict with the Fair Work Act, were to be implemented between the parties. This outcome ensured that the agreement was compliant with the Act while preserving the legitimate terms and conditions agreed upon by the parties.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established