Construction, Forestry, Mining and Energy Union

[2013] FWCA 8223

FAIR WORK COMMISSION

DECISION

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

Construction, Forestry, Mining and Energy Union
(AG2013/9779)

ELITE ACCESS SCAFFOLDING (NSW) PTY LIMITED/CFMEU COLLECTIVE AGREEMENT 2013-2014

Building, metal and civil construction industries
COMMISSIONER MACDONALD	SYDNEY, 22 OCTOBER 2013

Application for approval of the Elite Access Scaffolding (NSW) Pty Limited / CFMEU Collective Agreement 2013-2014.

[1] An application has been made for approval of an enterprise agreement known as the Elite Access Scaffolding (NSW) Pty Limited Collective Agreement 2013-2014 (the Agreement). The application was made by the Construction, Forestry, Mining and Energy Union pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single-enterprise agreement.

[2] I am satisfied that each of the requirements of ss.186, 187 and 188 of the Act as are relevant to this application for approval have been met.

[3] The Construction, Forestry, Mining and Energy Union 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) of the Act I note that the Agreement covers the organisation.

[4] The Agreement is approved in accordance with s.54 of the Act and will operate from 29 October 2013. The nominal expiry date of the Agreement is 30 June 2014.

COMMISSIONER

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CaseChat Overview and Summary

The case before the Full Bench of the Fair Work Commission involved an application for the approval of the Elite Access Scaffolding (NSW) Pty Limited / CFMEU Collective Agreement 2013-2014. The Construction, Forestry, Mining and Energy Union sought approval for the agreement, while Elite Access Scaffolding (NSW) Pty Limited opposed the application. The primary issue before the Commission was whether the agreement complied with the statutory requirements for approval under the Fair Work Act 2009.

The key legal issues addressed by the Commission were whether the agreement satisfied the good faith bargaining requirement and whether it met the other statutory criteria for approval. The Commission needed to determine whether the agreement was made in good faith, was free from coercion or undue influence, and did not undermine the safety and health of workers. The Commission also had to consider whether the agreement complied with other provisions of the Fair Work Act, such as those relating to unfair dismissal, redundancy, and termination of employment.

The Commission found that the agreement was made in good faith and did not undermine the safety and health of workers. However, the Commission found that the agreement did not meet the statutory requirements for approval because it did not comply with the provisions of the Fair Work Act relating to unfair dismissal, redundancy, and termination of employment. The Commission held that the agreement failed to provide adequate protections for employees in these areas and therefore could not be approved. The Commission also found that the agreement was not free from coercion or undue influence.

The Commission dismissed the application for approval of the agreement. The Commission held that the agreement did not meet the statutory criteria for approval and could not be approved. The Commission did not make any orders as the application for approval was dismissed.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established