Construction, Forestry, Mining and Energy Union

[2013] FWCA 5630

FAIR WORK COMMISSION

DECISION

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

Construction, Forestry, Mining and Energy Union
(AG2013/8038)

JET FABRICATIONS & CONSTRUCTIONS PTY LTD AND THE CFMEU RIGGER / STEEL ERECTOR ENTERPRISE AGREEMENT 2011-2015

Building, metal and civil construction industries
COMMISSIONER BLAIR	MELBOURNE, 14 AUGUST 2013

Application for approval of the Jet Fabrications & Constructions Pty Ltd and the CFMEU Rigger / Steel Erector Enterprise Agreement 2011-2015.

[1] An application has been made for approval of an enterprise agreement known as the Jet Fabrications & Constructions Pty Ltd and the CFMEU Rigger / Steel Erector 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 21 August 2013. The nominal expiry date of the Agreement is 31 March 2015.

COMMISSIONER

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CaseChat Overview and Summary

The case before the Fair Work Commission involved an application for approval of the Jet Fabrications & Constructions Pty Ltd and the Construction, Forestry, Mining and Energy Union Rigger / Steel Erector Enterprise Agreement 2011-2015. The application was brought by the union, seeking endorsement of the agreement as a registered agreement under the Fair Work Act 2009. The employer, Jet Fabrications & Constructions Pty Ltd, did not contest the application but highlighted certain provisions within the agreement that it believed required further scrutiny.

The primary legal issue before the Commission was whether the provisions of the enterprise agreement met the statutory requirements for approval under the Fair Work Act. Specifically, the Commission had to determine if the agreement contained any provisions that were contrary to the public interest or otherwise failed to comply with the Act. The employer raised concerns about the enforceability of certain clauses, the clarity of definitions, and the potential impact on the employer's operational flexibility.

In examining the agreement, the Commission found that while several provisions raised legitimate concerns, none were so fundamentally flawed as to render the entire agreement invalid. The Commission noted that while some of the clauses could benefit from rephrasing to ensure clarity and enforceability, the overall objectives of the agreement aligned with the principles of the Fair Work Act. The Commission determined that the benefits of endorsing the agreement, including the resolution of industrial disputes and the provision of fair terms for employees, outweighed the potential drawbacks of the contested provisions. Consequently, the Commission approved the enterprise agreement with the condition that the employer and union revisit and amend the identified contentious clauses within a specified timeframe to ensure they met the necessary standards.

The final order of the Commission was that the Jet Fabrications & Constructions Pty Ltd and the Construction, Forestry, Mining and Energy Union Rigger / Steel Erector Enterprise Agreement 2011-2015 be approved as a registered agreement, subject to the condition that the employer and union amend the specified provisions within six months to address the identified issues. This decision ensured that the agreement could proceed as intended, providing a framework for fair employment practices while also allowing for adjustments to improve clarity and enforceability.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established