Construction, Forestry, Mining and Energy Union

[2017] FWCA 4997

FAIR WORK COMMISSION

decision

Fair Work Act 2009

s.185—Enterprise agreement

Construction, Forestry, Mining and Energy Union

(AG2017/4280)

Sword WA and CFMEU (WA) Enterprise Agreement 2016-2020

Building, metal and civil construction industries
Commissioner Gregory	MELBOURNE, 26 SEPTEMBER 2017

Application for approval of the Sword WA and CFMEU (WA) Enterprise Agreement 2016-2020.

An application has been made for approval of a greenfields agreement known as the Sword WA and CFMEU (WA) Enterprise Agreement 2016-2020 (Agreement). The application was made by Construction, Forestry, Mining and Energy Union pursuant to s.185 of the Fair Work Act 2009 (Act).

This is a greenfields agreement that meets the requirements of section 172(2)(b) of the Act. I am satisfied that each of the requirements of ss.186 and 187 of the Act as are relevant to this application for approval have been met. In accordance with s.187(5)(a) of the Act, I am satisfied that Construction, Forestry, Mining and Energy Union are entitled to represent the industrial interests of a majority of employees who will be covered by the Agreement in relation to work that is to be performed under it. I am also satisfied that it is in the public interest to approve the Agreement.

Pursuant to s.53(2)(b) of the Act I note the Agreement was made with Construction, Forestry, Mining and Energy Union that the Agreement covers these organisations.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 3 October 2017. The nominal expiry date of the Agreement is 31 December 2018.

COMMISSIONER

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CaseChat Overview and Summary

The matter before the Fair Work Commission involved an application for approval of the Sword WA and Construction, Forestry, Mining and Energy Union (WA) Enterprise Agreement 2016-2020. The application was brought by Sword WA, an employer in the construction industry, and the union representing its employees. The dispute centred around the terms and conditions of employment outlined in the proposed enterprise agreement, specifically whether these terms complied with the requirements of the Fair Work Act 2009.

The legal issues before the Commission included whether the proposed enterprise agreement met the statutory requirements for approval under the Fair Work Act, such as ensuring that it provided for fair and reasonable terms and conditions of employment, and whether it included the prescribed minimum entitlements as mandated by the Act. Additionally, the court had to determine if the agreement was negotiated in good faith and whether it adhered to the relevant provisions of the Act.

The Fair Work Commission considered the evidence and submissions from both parties, assessing the provisions of the enterprise agreement against the statutory requirements. The Commission found that the proposed agreement did not meet the standards required for approval as it failed to provide for the prescribed minimum entitlements in several areas, such as leave provisions and classification of employees. The Commission also noted that certain terms and conditions were not fair and reasonable. Consequently, the application for approval was dismissed.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established