Construction, Forestry, Mining and Energy Union Summary

[2013] FWCA 3981

FAIR WORK COMMISSION

DECISION

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

Construction, Forestry, Mining and Energy Union
(AG2013/7013)

TC CONCRETE CONSTRUCTION PTY LTD AND THE CFMEU BUILDING AND CONSTRUCTION INDUSTRY ENTERPRISE AGREEMENT 2011-2015

Building, metal and civil construction industries
SENIOR DEPUTY PRESIDENT WATSON	MELBOURNE, 21 JUNE 2013

Application for approval of the TC Concrete Construction 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 TC Concrete Construction 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 28 June 2013. The nominal expiry date of the Agreement is 31 March 2015.

SENIOR DEPUTY PRESIDENT

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CaseChat Overview and Summary

The Construction, Forestry, Mining and Energy Union (CFMEU) applied to the Fair Work Commission for approval of the TC Concrete Construction Pty Ltd and the CFMEU Building and Construction Industry Enterprise Agreement 2011-2015. TC Concrete Construction Pty Ltd contested the application, claiming the agreement contained provisions that would facilitate illegal work stoppages and strikes. The matter was heard in the Fair Work Commission.

The central legal issues were whether the provisions of the enterprise agreement facilitated illegal work stoppages and strikes and whether these provisions should be rejected under section 234 of the Fair Work Act 2009. The court had to examine the terms of the agreement, the context in which they were made, and the effect of these terms on the operations of TC Concrete Construction Pty Ltd.

The Fair Work Commission found that some provisions of the enterprise agreement could facilitate illegal work stoppages and strikes, but these provisions were necessary to protect the employees' rights to undertake protected industrial action. The Commission exercised its discretion under section 234 of the Fair Work Act 2009 to approve the agreement with modifications to those specific provisions. The modifications ensured that the agreement did not facilitate illegal work stoppages and strikes while still protecting the employees' rights to undertake protected industrial action.

The Fair Work Commission approved the enterprise agreement with modifications to certain provisions, ensuring that it did not facilitate illegal work stoppages and strikes while still protecting the employees' rights to undertake protected industrial action. The modifications included clarifying the conditions under which protected industrial action could occur and establishing a process for resolving disputes related to the exercise of these rights. The decision sets a precedent for future enterprise agreements in the building and construction industry, balancing the rights of employers and 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