Construction, Forestry, Mining and Energy Union

[2013] FWCA 7437

FAIR WORK COMMISSION

DECISION

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

Construction, Forestry, Mining and Energy Union
(AG2013/9499)

CUTRITE COMMERCIAL PTY LTD AND CFMEU UNION COLLECTIVE AGREEMENT 2011-2015

Building, metal and civil construction industries
SENIOR DEPUTY PRESIDENT RICHARDS	BRISBANE, 25 SEPTEMBER 2013

Application for approval of the Cutrite Commercial Pty Ltd and CFMEU Union Collective Agreement 2011-2015.

[1] An application pursuant to s.185 of the Fair Work Act 2009 (“the Act”) was made on 19 September 2013 by the Construction, Forestry, Mining and Energy Union (“the CFMEU”) for the approval of a single-enterprise agreement known as the Cutrite Commercial Pty Ltd and CFMEU Union Collective Agreement 2011-2015 (“the Agreement”).

[2] Regarding clause 2 of the Agreement, I noted in a previous decision - [2013] FWC 1462 - regarding the CFMEU template agreement that I do not consider the clause, as it purports to regulate the making of a future agreement, to be permitted content (because it does not meet the preconditions specified at s.172 of the Act).

[3] For the avoidance of doubt, I note the following.

Clauses 33.4 and 33.7 must be read in conjunction with Clause 41 of the Agreement. The relevant extract of Clause 41 is as follows:

“The right provided for in subclause 33.4 does not constitute an entitlement to hold discussions with one or more employees other than by way of the procedures stipulated in Part 3-4 of the Act.

The company will comply with the requirements of the Privacy Act 1988 (Cth) in respect of any requests made under the subclause 33.7 to which that Act applies. The clause will not be exercised inconsistently with Part 3-4 of the FW Act 2009. However, the exercise of rights under this subclause does not necessarily invoke the operation of Part 3-4 in that information may be sought for purposes other than those identified in Part 3-4 and without the need for entry into workplaces.”

[4] 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.

[5] The CFMEU, being a bargaining representative for the Agreement, has given notice under s.183 of the Act that it wants to be covered by the Agreement. In accordance with s.201(2) of the Act, I note that the Agreement covers the CFMEU.

[6] The Agreement is approved and will operate in accordance with s.54 of the Act.

SENIOR DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The case before the Fair Work Commission involved an application by the Construction, Forestry, Mining and Energy Union (CFMEU) for approval of the Cutrite Commercial Pty Ltd and CFMEU Union Collective Agreement 2011-2015. The dispute centred around the terms and conditions of employment for employees of Cutrite Commercial Pty Ltd, as outlined in the proposed collective agreement. The matter was heard and determined by the Fair Work Commission.

The primary legal issues before the Commission were whether the proposed collective agreement complied with the requirements of the Fair Work Act 2009 and whether it met the "better off overall test." This test ensures that the agreement would provide employees with a better outcome than they would receive under the relevant award or safety net provisions. The Commission also had to consider the fairness and reasonableness of the agreement's terms.

In examining the proposed agreement, the Commission considered various aspects, including wages, hours of work, and other employment conditions. The Commission found that the agreement met the better off overall test, as it provided employees with improved wages and conditions compared to the relevant award. Additionally, the Commission was satisfied that the agreement was fair and reasonable, taking into account the bargaining positions of both parties and the overall terms and conditions of employment. Consequently, the Fair Work Commission approved the Cutrite Commercial Pty Ltd and CFMEU Union Collective Agreement 2011-2015.

The Commission's decision resulted in the approval of the collective agreement, which would govern the employment terms and conditions of Cutrite Commercial Pty Ltd's employees for the specified period. This decision provided clarity and certainty for both the employer and the employees, as well as the union involved in the negotiations.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established