Construction, Forestry, Mining and Energy Union

[2013] FWCA 3247

FAIR WORK COMMISSION

DECISION

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

Construction, Forestry, Mining and Energy Union
(AG2013/6506)

BRICKCORP PTY LTD AND THE CFMEU BRICKLAYING CONTRACTORS ENTERPRISE AGREEMENT 2011-2015

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

Application for approval of the Brickcorp Pty Ltd and the CFMEU Bricklaying Contractors Enterprise Agreement 2011-2015.

[1] An application has been made for approval of an enterprise agreement known as the Brickcorp Pty Ltd and the CFMEU Bricklaying Contractors 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

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The case before the Fair Work Commission was an application for approval of the Brickcorp Pty Ltd and the CFMEU Bricklaying Contractors Enterprise Agreement 2011-2015. The dispute arose from the application made by the Construction, Forestry, Mining and Energy Union (CFMEU) seeking the Fair Work Commission's approval of the enterprise agreement, which was to govern the employment terms and conditions for bricklayers employed by Brickcorp Pty Ltd for the period 2011-2015. The Commission was tasked with determining whether the agreement complied with the relevant provisions of the Fair Work Act 2009.

The central legal issue before the Commission was whether the agreement satisfied the criteria for approval under section 230 of the Fair Work Act. This involved assessing whether the agreement met the requirements for being a "registerable" agreement, including whether it provided for fair and reasonable terms and conditions, and whether it was made in good faith and without coercion. A key point of contention was the incorporation of provisions from a national building industry agreement, which the CFMEU argued should be excluded from the agreement as they were not relevant to the specific terms and conditions of bricklayers employed by Brickcorp Pty Ltd.

The Fair Work Commission, after careful consideration, found that the agreement was made in good faith and without coercion. However, the Commission also determined that the agreement contained provisions that were not relevant to the specific terms and conditions of bricklayers employed by Brickcorp Pty Ltd, and that these provisions should be excluded from the agreement. The Commission held that the agreement, once amended to exclude these irrelevant provisions, would meet the criteria for approval under section 230 of the Fair Work Act. Consequently, the Commission approved the agreement, subject to the condition that the CFMEU amend the agreement to exclude the irrelevant provisions.

The final orders of the Fair Work Commission were that the Brickcorp Pty Ltd and the CFMEU Bricklaying Contractors Enterprise Agreement 2011-2015 be approved, with the condition that the CFMEU amend the agreement to exclude the irrelevant provisions. The agreement was to be registered upon compliance with this condition. This decision provided clarity on the process for approving enterprise agreements and the importance of ensuring that agreements are tailored to the specific employment terms and conditions of the employees they govern.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established