Construction, Forestry, Mining and Energy Union

[2013] FWCA 5158

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Mining and Energy Union
(AG2013/7709)

COMMANDO STORAGE SYSTEMS PTY LTD AND THE CFMEU BUILDING AND CONSTRUCTION INDUSTRY ENTERPRISE AGREEMENT 2011-2015

Building, metal and civil construction industries
COMMISSIONER BLAIR	MELBOURNE, 30 JULY 2013

Application for approval of the Commando Storage Systems 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 Commando Storage Systems 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 6 August 2013. The nominal expiry date of the Agreement is 31 March 2015.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The applicants, Commando Storage Systems Pty Ltd and the Construction, Forestry, Mining and Energy Union (CFMEU), sought approval of their enterprise agreement under the Fair Work Act 2009. The dispute arose when the Australian Building and Construction Commission (ABCC) objected to the approval of the agreement on the basis that certain provisions were not in the best interests of employees due to their potential to undermine the general safety provisions in Schedule 1 of the Fair Work Act. The matter was heard in the Fair Work Commission.

The central legal issue before the Commission was whether certain provisions of the agreement, which allowed for the creation of a safety committee composed solely of management representatives, were contrary to the general safety provisions in Schedule 1 of the Fair Work Act. Specifically, the Commission needed to determine whether these provisions were in the best interests of the employees, given that they could potentially weaken the requirement for a balanced representation of both management and employees in safety decision-making processes.

In assessing the matter, the Commission considered the provisions of the Fair Work Act and the object of the general safety provisions. It noted that the general safety provisions aimed to ensure a balanced approach to safety, which includes the involvement of both management and employees in safety processes. The Commission found that the provisions allowing for a safety committee composed entirely of management representatives did not align with these objectives, as they could lead to decisions that do not adequately consider the perspectives and safety concerns of employees. Consequently, the Commission ruled that these provisions were not in the best interests of the employees and, therefore, not eligible for approval.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established