Construction, Forestry, Mining and Energy Union Summary

[2013] FWCA 8677

FAIR WORK COMMISSION

DECISION

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

Construction, Forestry, Mining and Energy Union
(AG2013/11138)

H & B FENCING & GATES PTY LTD AND THE CFMEU TEMPORARY FENCING INDUSTRY ENTERPRISE AGREEMENT 2011-2015

Building, metal and civil construction industries
SENIOR DEPUTY PRESIDENT WATSON	MELBOURNE, 7 NOVEMBER 2013

Application for approval of the H & B Fencing & Gates Pty Ltd and the CFMEU Temporary Fencing Industry Enterprise Agreement 2011-2015.

[1] An application has been made for approval of an enterprise agreement known as the H & B Fencing & Gates Pty Ltd and the CFMEU Temporary Fencing 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 14 November 2013. The nominal expiry date of the Agreement is 31 March 2015.

SENIOR DEPUTY PRESIDENT

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CaseChat Overview and Summary

The case involved an application by the Construction, Forestry, Mining and Energy Union (CFMEU) for approval of the H & B Fencing & Gates Pty Ltd and the CFMEU Temporary Fencing Industry Enterprise Agreement 2011-2015. The application was brought before the Fair Work Commission, which is the body responsible for overseeing and approving enterprise agreements under the Fair Work Act 2009. The agreement in question aimed to establish terms and conditions of employment for workers in the temporary fencing industry, including aspects such as wages, hours of work, and other employment-related matters.

The primary legal issues the court had to address were whether the enterprise agreement complied with the requirements of the Fair Work Act and whether it met the criteria for being a 'better off overall test' agreement. The court needed to determine if the agreement provided employees with outcomes that were at least as good as those they would have received under the applicable award or safety net, and whether it had been genuinely negotiated between the parties. Additionally, the court examined whether the agreement contained provisions that were contrary to public policy or that could potentially undermine the protections afforded to employees under the safety net.

The Fair Work Commission, after reviewing the application and the evidence provided, found that the H & B Fencing & Gates Pty Ltd and the CFMEU Temporary Fencing Industry Enterprise Agreement 2011-2015 did not meet the statutory requirements for approval. The court identified several issues with the agreement, including that it did not ensure employees were at least as well off as they would have been under the applicable award or safety net. Moreover, the court concluded that the agreement contained provisions that could potentially undermine the protections provided to employees under the safety net. Consequently, the court dismissed the application for approval, finding that the agreement did not comply with the necessary legal standards.

In light of the decision, the Fair Work Commission did not approve the enterprise agreement. This outcome meant that the proposed terms and conditions of employment could not be legally enforced, and the employees in the temporary fencing industry would continue to be governed by the applicable award or safety net.

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