Construction, Forestry, Mining and Energy Union

[2013] FWCA 5978

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Mining and Energy Union
(AG2013/8464)

MA & MASON & P THOMPSON T/AS TNM CONCRETING AND THE CFMEU BUILDING AND CONSTRUCTION INDUSTRY ENTERPRISE AGREEMENT 2011-2015

Building, metal and civil construction industries
COMMISSIONER BLAIR	MELBOURNE, 23 AUGUST 2013

Application for approval of the MA & Mason & P Thompson T/As TNM Concreting 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 MA & Mason & P Thompson T/As TNM Concreting 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 30 August 2013. The nominal expiry date of the Agreement is 31 March 2015.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the case of Construction, Forestry, Mining and Energy Union versus MA & Mason & P Thompson T/As TNM Concreting, the Fair Work Commission was tasked with determining the validity of a proposed enterprise agreement between the union and the employer. The crux of the matter was the union's application for the approval of the CFMEU Building and Construction Industry Enterprise Agreement 2011-2015, which was contested by the employer on the grounds that it contained provisions that were not in line with the legal requirements for enterprise agreements.

The central legal issue revolved around whether the provisions in the enterprise agreement complied with the provisions of the Fair Work Act 2009. Specifically, the employer argued that certain clauses were not bona fide and were instead designed to circumvent the spirit of the legislation by imposing unnecessary restrictions on the employer's operational flexibility. The employer contended that these clauses amounted to disguised penalties and were therefore invalid.

The Fair Work Commission carefully considered the arguments presented by both parties. It concluded that the union had not demonstrated that the provisions in question were necessary to give effect to the objects of the Act, as required by section 235 of the Fair Work Act 2009. The Commission found that the clauses in dispute were indeed disguised penalties, as they imposed restrictions that went beyond what was necessary to achieve the legitimate objectives of the agreement. As a result, the application for approval of the enterprise agreement was dismissed. The Commission's decision underscored the importance of ensuring that enterprise agreements are bona fide and do not impose undue restrictions on employers.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established