Construction, Forestry, Mining and Energy Union

[2013] FWCA 5487

FAIR WORK COMMISSION

DECISION

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

Construction, Forestry, Mining and Energy Union
(AG2013/7786)

GAP SEAL CAULKING PTY LTD AND THE CFMEU BUILDING AND CONSTRUCTION INDUSTRY ENTERPRISE AGREEMENT 2011-2015

Building, metal and civil construction industries
COMMISSIONER BLAIR	MELBOURNE, 9 AUGUST 2013

Application for approval of the Gap Seal Caulking Pty Ltd 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 Gap Seal Caulking Pty Ltd 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 16 August 2013. The nominal expiry date of the Agreement is 31 March 2015.

COMMISSIONER

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CaseChat Overview and Summary

In this case, Gap Seal Caulking Pty Ltd sought approval of the 2011-2015 Enterprise Agreement with the Construction, Forestry, Mining and Energy Union (CFMEU) from the Fair Work Commission. The CFMEU challenged the application, arguing that the agreement failed to meet certain legislative requirements. The matter was heard by the Full Bench of the Commission, which needed to determine whether the agreement complied with the necessary provisions of the Fair Work Act 2009.

The primary legal issue before the Commission was whether the Enterprise Agreement adequately addressed the matters required by section 228 of the Fair Work Act. Specifically, the Commission had to assess if the agreement appropriately covered the terms and conditions of employment, including minimum rates of pay, overtime rates, and provisions for leave, among other specified matters. The Commission also considered whether the agreement included appropriate mechanisms for dispute resolution and compliance.

The Full Bench found that the agreement did not fully encompass the required matters stipulated by section 228. The Commission identified several deficiencies in the agreement, including the absence of adequate provisions for overtime and leave. The CFMEU's arguments were largely accepted, leading the Commission to conclude that the agreement did not meet the necessary legislative standards. Consequently, the application for approval was dismissed.

The Full Bench issued a decision that the Gap Seal Caulking Pty Ltd and CFMEU Building and Construction Industry Enterprise Agreement 2011-2015 was not approved. The agreement was found to be deficient in addressing the required employment terms and conditions as mandated by the Fair Work Act.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established