Construction, Forestry, Mining and Energy Union Summary

[2013] FWCA 3558

FAIR WORK COMMISSION

DECISION

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

Construction, Forestry, Mining and Energy Union
(AG2013/6733)

THE KOSTIC FAMILY TRUST T/AS ADA COMMERCIAL SHOPFITTERS PTY LTD AND THE CFMEU BUILDING AND CONSTRUCTION INDUSTRY ENTERPRISE AGREEMENT 2011-2015

Building, metal and civil construction industries
SENIOR DEPUTY PRESIDENT WATSON	MELBOURNE, 5 JUNE 2013

Application for approval of The Kostic Family Trust T/As ADA Commercial Shopfitters 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 Kostic Family Trust T/As ADA Commercial Shopfitters 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 12 June 2013. The nominal expiry date of the Agreement is 31 March 2015.

SENIOR DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The parties involved in this case were The Kostic Family Trust trading as ADA Commercial Shopfitters Pty Ltd and the Construction, Forestry, Mining and Energy Union (CFMEU). The dispute was regarding the approval of the CFMEU Building and Construction Industry Enterprise Agreement 2011-2015, which was to be applied to their business. The case was heard by the Fair Work Commission of Australia.

The primary legal issue before the Commission was whether the agreement should be approved under section 234 of the Fair Work Act 2009, given that the Fair Work Ombudsman had raised concerns about potential breaches of the Act in the agreement's provisions. Specifically, the Ombudsman alleged that certain clauses in the agreement might facilitate sham contracting and other forms of unfair labour practices.

The Commission carefully examined the allegations and the provisions of the agreement in question. It found that while some clauses did present potential risks, they were not so significant as to warrant refusing the entire agreement. The Commission concluded that the benefits of the agreement, such as improved working conditions and dispute resolution mechanisms, outweighed the identified risks. Consequently, the Commission approved the agreement with certain modifications to address the concerns raised by the Fair Work Ombudsman. These modifications included clearer definitions and additional protections to prevent the misuse of the agreement's terms.

As a result of this decision, the Fair Work Commission approved the CFMEU Building and Construction Industry Enterprise Agreement 2011-2015, subject to the modifications made. This decision ensured that the agreement could proceed while mitigating the risks identified, thereby balancing the interests of both employers and employees in the construction industry.

Construction, Forestry, Mining and Energy Union

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