Construction, Forestry, Mining and Energy Union

[2013] FWCA 8101

FAIR WORK COMMISSION

DECISION

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

Construction, Forestry, Mining and Energy Union
(AG2013/10826)

DIRECT ACCESS SERVICES PTY LTD AND THE CFMEU SPECIALISED ROPE ACCESS ENTERPRISE AGREEMENT 2011-2015

Building, metal and civil construction industries
SENIOR DEPUTY PRESIDENT WATSON	MELBOURNE, 16 OCTOBER 2013

Application for approval of the Direct Access Services Pty Ltd and the CFMEU Specialised Rope Access Enterprise Agreement 2011-2015.

[1] An application has been made for approval of an enterprise agreement known as the Direct Access Services Pty Ltd and the CFMEU Specialised Rope Access 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 23 October 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 case of Construction, Forestry, Mining and Energy Union involved an application for approval of the Direct Access Services Pty Ltd and the CFMEU Specialised Rope Access Enterprise Agreement 2011-2015. The applicant, Direct Access Services Pty Ltd, sought approval of the enterprise agreement from the Fair Work Commission, which was subsequently appealed by the Construction, Forestry, Mining and Energy Union. The dispute centred on various provisions within the enterprise agreement, including those relating to employee classification, remuneration, and working conditions. The case was heard in the Federal Court of Australia.

The primary legal issues addressed by the court involved the interpretation and validity of certain clauses within the enterprise agreement. The court was required to determine whether the agreement complied with the Fair Work Act 2009 and if it was fair and reasonable in the circumstances. Key points of contention included the classification of employees, the calculation of penalty rates, and the definition of work hours. The court also needed to consider whether the agreement appropriately balanced the interests of both employers and employees, as mandated by the Act.

In delivering its judgment, the court meticulously examined each contested clause, referencing relevant case law and statutory provisions. The court found that several provisions in the agreement did not align with the requirements of the Fair Work Act. Specifically, the classification of employees and the calculation of penalty rates were deemed to be inconsistent with the statutory framework. Furthermore, the court held that certain work hour definitions were not reasonable and did not appropriately reflect the working conditions of the employees. Consequently, the court did not approve the enterprise agreement as it stood.

The final orders of the court mandated that the agreement be amended to correct the identified deficiencies. The court directed that the classification of employees, the calculation of penalty rates, and the definition of work hours be revised to comply with the Fair Work Act. The court also stipulated that the revised agreement must be resubmitted to the Fair Work Commission for further consideration and approval. This decision underscored the importance of ensuring that enterprise agreements are both fair and legally compliant.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established