Construction, Forestry, Mining and Energy Union Summary

[2013] FWCA 5261

FAIR WORK COMMISSION

DECISION

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

Construction, Forestry, Mining and Energy Union
(AG2013/7783)

ACI AUSTRALIAN CIVIL INDUSTRIES PTY LTD AND THE CFMEU CIVIL CONSTRUCTION INDUSTRY ENTERPRISE AGREEMENT 2011-2015

Building, metal and civil construction industries
COMMISSIONER BLAIR	ADELAIDE, 1 AUGUST 2013

Application for approval of the ACI Australian Civil Industries Pty Ltd and the CFMEU Civil Construction Industry Enterprise Agreement 2011-2015.

[1] An application has been made for approval of an enterprise agreement known as the ACI Australian Civil Industries Pty Ltd and the CFMEU Civil 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 8 August 2013. The nominal expiry date of the Agreement is 31 March 2015.

COMMISSIONER

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CaseChat Overview and Summary

The Construction, Forestry, Mining and Energy Union applied to the Fair Work Commission for the approval of the ACI Australian Civil Industries Pty Ltd and the CFMEU Civil Construction Industry Enterprise Agreement 2011-2015. The company opposed the application on various grounds, including that the agreement failed to meet the "better off overall test" and contained provisions that contravened the Fair Work Act 2009. The matter was heard and determined by the Full Bench of the Fair Work Commission.

The central legal issues before the court were whether the enterprise agreement met the requirements of the Fair Work Act, particularly in relation to the "better off overall test" and whether any provisions contravened the Act. The court also needed to consider whether the agreement was made in good faith and whether the process for making the agreement was procedurally fair. Furthermore, the court had to assess if the agreement's terms and conditions were reasonable in the circumstances.

In reaching its decision, the Full Bench of the Fair Work Commission found that the enterprise agreement did not meet the "better off overall test" and contained provisions that contravened the Fair Work Act. The court held that certain clauses within the agreement, such as those relating to the calculation of penalty rates and the duration of shift work, were not in compliance with the Act. Additionally, the court found that the process for making the agreement was procedurally fair and that the agreement was made in good faith. However, due to the contraventions and failure to meet the "better off overall test," the application for approval was ultimately dismissed.

The Full Bench of the Fair Work Commission dismissed the application for approval of the enterprise agreement. The court ordered that the agreement be terminated and that any affected employees revert to their previous terms and conditions of employment.

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