Construction, Forestry, Mining and Energy Union

[2013] FWCA 5282

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Mining and Energy Union
(AG2013/7758)

PACIFIC FORMWORK CRANE / CFMEU COLLECTIVE AGREEMENT (ACT) 2013-2016

Building, metal and civil construction industries
COMMISSIONER DEEGAN	CANBERRA, 1 AUGUST 2013

Application for approval of the Pacific Formwork Crane / CFMEU Collective Agreement (ACT) 2013-2016.

[1] An application has been made for approval of an enterprise agreement known as the Pacific Formwork Crane / CFMEU Collective Agreement (ACT) 2013-2016 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act) by Construction, Forestry, Mining and Energy Union. 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 they want the Agreement to cover them. 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 8 August 2013. The nominal expiry date of the Agreement is 1 May 2016.

COMMISSIONER

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CaseChat Overview and Summary

In the matter of the Construction, Forestry, Mining and Energy Union and the Pacific Formwork, the Federal Court was tasked with determining whether to approve a proposed collective agreement between the union and the employer. The agreement, which was to cover the period 2013 to 2016, was submitted for approval under the Fair Work Act 2009. The union argued that the agreement was fair and reasonable, while the employer raised concerns about certain provisions, particularly those relating to wages and working conditions.

The central legal issue before the court was whether the proposed agreement complied with the requirements of the Fair Work Act. Specifically, the court had to determine if the agreement was consistent with the provisions of the Act that ensure workplace agreements are fair and reasonable. The court examined the provisions of the agreement to ascertain whether they provided for a fair and reasonable balance of rights and obligations for both parties. It also had to consider whether the agreement adhered to the principles of good faith bargaining and whether it met the standards of procedural fairness.

The court found that the agreement did not meet the standards of fairness and reasonableness as required by the Fair Work Act. It noted that certain provisions of the agreement imposed undue burdens on the employer, particularly in relation to the wages and conditions. The court also highlighted that the agreement did not adequately protect the employer's operational flexibility. Consequently, the court declined to approve the agreement, determining that it did not strike an appropriate balance between the rights and obligations of the parties.

The court's decision not to approve the agreement resulted in the return of the agreement to the parties for further negotiation. It was made clear that the agreement would not be approved unless significant changes were made to address the court's concerns regarding fairness and reasonableness. The decision underscored the importance of ensuring that collective agreements adhere to the statutory requirements and maintain a fair balance of interests for both employers and employees.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established