Construction, Forestry, Mining and Energy Union

[2013] FWCA 8512

FAIR WORK COMMISSION

DECISION

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

Construction, Forestry, Mining and Energy Union
(AG2013/11037)

RATHCARBERY CONSTRUCTION PTY LTD AND THE CFMEU BUILDING AND CONSTRUCTION INDUSTRY ENTERPRISE AGREEMENT 2011-2015

Building, metal and civil construction industries
SENIOR DEPUTY PRESIDENT WATSON	MELBOURNE, 30 OCTOBER 2013

Application for approval of the Rathcarbery Construction 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 Rathcarbery Construction 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 6 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

The Construction, Forestry, Mining and Energy Union (CFMEU) lodged an application for approval of the Rathcarbery Construction Pty Ltd and the CFMEU Building and Construction Industry Enterprise Agreement 2011-2015 with the Fair Work Commission (FWC). The dispute centred on whether the enterprise agreement contained provisions that were contrary to the public interest, specifically in relation to the requirements for employees to work overtime and the process for handling disputes between employees and employers. The matter was heard in the FWC.

The legal issues before the FWC were whether certain provisions in the enterprise agreement contravened the public interest by imposing undue restrictions on employers' ability to manage their workforce and by potentially disadvantaging employees. The CFMEU argued that the provisions were necessary to protect workers' rights and ensure fair treatment. The FWC had to balance the rights of employees as represented by the union against the legitimate interests of employers in managing their businesses.

The FWC found that while the agreement contained provisions that were in the interests of employees, several provisions were deemed contrary to the public interest. Specifically, the FWC was concerned with provisions that imposed strict requirements for employees to work overtime and those that outlined a dispute resolution process that could be perceived as overly favourable to employees. The FWC determined that these provisions went beyond what was necessary to protect employees and could potentially harm the public interest by imposing unnecessary constraints on employers. As a result, the FWC did not approve the enterprise agreement in its entirety.

The FWC directed the parties to negotiate and submit a revised agreement that addressed the identified concerns. The FWC emphasised the need for a balanced approach that protected employees' rights while also allowing employers to manage their businesses effectively. The court did not provide specific details on the final orders but indicated that further submissions would be required from the parties to address the issues raised.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established