Construction, Forestry, Mining and Energy Union Summary

[2013] FWCA 6024

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Mining and Energy Union
(AG2013/2361)

TUBELOK CONSTRUCTIONS PTY LTD AND CFMEU (WA) AND EMPLOYEES ENTERPRISE AGREEMENT 2011-2014

Building, metal and civil construction industries
DEPUTY PRESIDENT MCCARTHY	PERTH, 22 AUGUST 2013

Application for approval of the Tubelok Constructions Pty Ltd and CFMEU (WA) and Employees Enterprise Agreement 2011-2014.

[1] An application has been made for approval of an enterprise agreement known as the Tubelok Constructions Pty Ltd and CFMEU (WA) and Employees Enterprise Agreement 2011-2014 (the Agreement). The application was made 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 and, in accordance with s.54 of the Act, will operate from seven days from the date of this decision. The nominal expiry date of the Agreement is 31 October 2014.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the Fair Work Commission, the Construction, Forestry, Mining and Energy Union (CFMEU) applied for approval of the Tubelok Constructions Pty Ltd and CFMEU (WA) and Employees Enterprise Agreement 2011-2014. The application was opposed by Tubelok Constructions Pty Ltd, which contended that the agreement contained a clause that was not in accordance with the Fair Work Act 2009 (Cth). The dispute involved the interpretation and application of the provisions of the Fair Work Act, specifically those relating to the approval of enterprise agreements.

The primary legal issue before the Commission was whether a particular clause in the enterprise agreement contravened section 234 of the Fair Work Act, which prohibits the inclusion of terms that have the effect of requiring employees to join a trade union as a condition of employment. Tubelok argued that the clause in question, which provided for the payment of union fees by employees as a condition of employment, was inconsistent with section 234. The CFMEU contended that the clause did not have the effect of requiring employees to join the union and that it was a legitimate means of ensuring the collection of union fees.

The Commission held that the clause in question did not have the effect of requiring employees to join the union and was therefore not in breach of section 234 of the Fair Work Act. The Commission found that the clause provided a practical means of ensuring the collection of union fees and that it did not impose any additional burdens or requirements on employees beyond those that were already in place. The Commission also noted that the clause was consistent with the provisions of the Fair Work Act that permit the collection of union fees from employees as a condition of employment. As such, the Commission approved the enterprise agreement, subject to certain minor modifications.

In light of the above, the Commission approved the Tubelok Constructions Pty Ltd and CFMEU (WA) and Employees Enterprise Agreement 2011-2014, subject to certain modifications. The modifications related to the calculation of overtime rates and the provision of annual leave. The Commission considered that these modifications were necessary to ensure that the agreement complied with the relevant provisions of the Fair Work Act. The decision provides guidance on the interpretation of section 234 of the Fair Work Act and the types of clauses that may be included in enterprise agreements.

Construction, Forestry, Mining and Energy Union

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established