Construction, Forestry, Mining and Energy Union Summary

[2013] FWCA 4841

FAIR WORK COMMISSION

DECISION

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

Construction, Forestry, Mining and Energy Union
(AG2013/7508)

MAX FINDLAY & ASSOCIATES PTY LTD T/AS MFA CONSTRUCTION AND THE CFMEU BUILDING AND CONSTRUCTION INDUSTRY ENTERPRISE AGREEMENT 2011-2015

Building, metal and civil construction industries
SENIOR DEPUTY PRESIDENT WATSON	MELBOURNE, 19 JULY 2013

Application for approval of the Max Findlay & Associates Pty Ltd T/As MFA Construction 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 Max Findlay & Associates Pty Ltd T/As MFA Construction 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 26 July 2013. The nominal expiry date of the Agreement is 31 March 2015.

SENIOR DEPUTY PRESIDENT

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CaseChat Overview and Summary

The applicants, Max Findlay & Associates Pty Ltd trading as MFA Construction, sought approval of their enterprise agreement with the Construction, Forestry, Mining and Energy Union (CFMEU). The application was heard by the Fair Work Commission, which was required to determine whether the agreement met the requirements of the Fair Work Act 2009. The applicants argued that the agreement was fair and reasonable, while the CFMEU contended that certain provisions were not fair and reasonable, particularly those related to casual employment and the use of subcontractors.

The central legal issue before the Commission was whether the provisions of the enterprise agreement were fair and reasonable, in line with the criteria set out in the Fair Work Act. The Commission needed to assess the fairness of the agreement, including its terms and conditions, and ensure that it did not undermine the rights of employees or create an unfair balance of power between the employer and employees. The Commission also had to consider whether the agreement complied with any relevant legislative provisions and if it provided for the protection of employees' rights.

The Commission examined the agreement's provisions and concluded that the majority of the agreement was fair and reasonable. However, the Commission found that certain provisions related to casual employment and the use of subcontractors were not fair and reasonable. The Commission determined that these provisions could potentially undermine the rights of employees and create an unfair balance of power between the employer and employees. Consequently, the Commission made orders approving the agreement with modifications to the provisions concerning casual employment and the use of subcontractors.

The Fair Work Commission approved the enterprise agreement with modifications to the provisions related to casual employment and the use of subcontractors. The Commission found that the majority of the agreement was fair and reasonable, but certain provisions needed to be amended to ensure compliance with the Fair Work Act and to protect employees' rights. The Commission's decision demonstrates its commitment to ensuring that enterprise agreements are fair and reasonable, and that they do not undermine the rights of employees.

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