Construction, Forestry, Mining and Energy Union Summary

[2013] FWCA 3244

FAIR WORK COMMISSION

DECISION

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

Construction, Forestry, Mining and Energy Union
(AG2013/6503)

CBD CONCRETING PTY LTD AND THE CFMEU BUILDING AND CONSTRUCTION INDUSTRY ENTERPRISE AGREEMENT 2011-2015

Building, metal and civil construction industries
SENIOR DEPUTY PRESIDENT WATSON	MELBOURNE, 23 MAY 2013

Application for approval of the CBD Concreting 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 CBD Concreting 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 30 May 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) sought approval of an enterprise agreement between CBD Concreting Pty Ltd and the CFMEU Building and Construction Industry Enterprise Agreement 2011-2015. The application was heard by the Fair Work Commission. The primary legal issue before the Commission was whether the proposed enterprise agreement complied with the requirements of the Fair Work Act 2009.

The Commission noted that the agreement contained provisions that appeared to mandate certain union membership conditions, which could potentially contravene the Act’s provisions protecting employees' freedom of association. Specifically, the agreement stipulated that only employees who were members of the CFMEU could be allocated work on certain projects. The Commission examined whether such a clause could be seen as unduly restrictive and coercive. It was also necessary to determine if the agreement met the requirements for "no-disadvantage" and "better off overall" tests, ensuring that employees were not worse off under the new agreement than they were under the previous terms.

After thorough examination, the Commission found that the agreement did not meet the "no-disadvantage" test as it placed non-union members at a disadvantage by restricting their work opportunities. Additionally, it was determined that the agreement did not satisfy the "better off overall" test because it did not provide sufficient evidence that employees would be better off overall under the new agreement. Consequently, the application for approval was dismissed. The Commission highlighted that the provisions mandating union membership were not compliant with the Act’s protections regarding freedom of association.

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