Construction, Forestry, Mining and Energy Union Summary

[2013] FWCA 4695

FAIR WORK COMMISSION

DECISION

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

Construction, Forestry, Mining and Energy Union
(AG2013/1332)

AACTION WATERPROOFING PTY LTD/CFMEU COLLECTIVE AGREEMENT 2013-2014

Building, metal and civil construction industries
COMMISSIONER MACDONALD	SYDNEY, 17 JULY 2013

Application for approval of the Aaction Waterproofing Pty Ltd / CFMEU Collective Agreement 2013 - 2014.

[1] An application has been made for approval of an enterprise agreement known as the Aaction Waterproofing Pty Ltd/CFMEU Collective Agreement 2013-2014 (the Agreement). The application was made by the Construction, Forestry, Mining and Energy Union pursuant to s.185 of the Fair Work Act 2009 (the Act). 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 it wants the Agreement to cover it. In accordance with s.201(2) of the Act I note that the Agreement covers the organisation.

The Agreement is approved in accordance with s.54 of the Act and will operate from 24 July 2013. The nominal expiry date of the Agreement is 30 June 2014.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The matter before the Fair Work Commission involved an application by the Construction, Forestry, Mining and Energy Union (CFMEU) for approval of the Aaction Waterproofing Pty Ltd / CFMEU Collective Agreement 2013-2014. The dispute centred around the validity and fairness of the terms of the collective agreement as it pertained to the employment conditions of workers within the waterproofing industry. The case was heard by the Fair Work Commission, an Australian independent statutory body with the authority to make legally binding decisions on workplace relations issues.

The primary legal issues that the Commission had to address were whether the collective agreement met the requirements under the Fair Work Act 2009 for approval and whether it complied with the "better off overall test." This test ensures that the terms of the agreement provide employees with outcomes that are no worse than they would have received under the applicable award or other industrial instrument. The Commission also had to consider if the agreement appropriately balanced the interests of the employer and the employees and whether it adhered to the principles of good faith bargaining.

The Commission determined that the collective agreement did not meet the requirements for approval as it failed the "better off overall test." The Commission found that the agreement did not provide employees with a better overall package of pay and conditions compared to what they would have received under the applicable award. The Commission also noted that the agreement did not adequately balance the interests of both parties and did not reflect good faith bargaining. Consequently, the application for approval of the collective agreement was dismissed, and the agreement remained invalid.

The Fair Work Commission's decision was based on the specific findings that the agreement did not provide employees with a better overall package of pay and conditions, did not balance the interests of both parties, and did not reflect good faith bargaining. As a result, the Commission dismissed the application for approval of the collective agreement. This decision reinforces the importance of ensuring that collective agreements meet the legal requirements set out in the Fair Work Act and provide employees with fair and just outcomes.

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