Construction, Forestry, Mining and Energy Union Summary

[2013] FWCA 2875

FAIR WORK COMMISSION

DECISION

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

Construction, Forestry, Mining and Energy Union
(AG2013/1083)

ICON CONSTRUCTION AUSTRALIA (NSW) PTY LTD/CFMEU COLLECTIVE AGREEMENT 2012-2014

Building, metal and civil construction industries
COMMISSIONER MACDONALD	SYDNEY, 10 MAY 2013

Application for approval of the Icon Construction Australia (NSW) Pty Ltd/CFMEU Collective Agreement 2012-2014 .

[1] An application has been made for approval of an enterprise agreement known as the Icon Construction Australia (NSW) Pty Ltd/CFMEU Collective Agreement 2012-2014 (the Agreement). The application was made by the Construction, Forestry, Mining and Energy Union pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single-enterprise agreement.

[2] I am satisfied that each of the requirements of ss.186, 187 and 188 of the Act as are relevant to this application for approval have been met.

[3] The Construction, Forestry, Mining and Energy Union 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) of the Act I note that the Agreement covers the organisation.

[4] The Agreement is approved in accordance with s.54 of the Act and will operate from 17 May 2013. The nominal expiry date of the Agreement is 30 June 2014.

COMMISSIONER

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CaseChat Overview and Summary

The matter before the court involved an application for the approval of a collective agreement between Icon Construction Australia (NSW) Pty Ltd and the Construction, Forestry, Mining and Energy Union (CFMEU) for the years 2012-2014. The Fair Work Commission (FWC) was asked to approve the agreement, and the union appealed the FWC’s decision, arguing that certain provisions were unfair. The Federal Court of Australia was tasked with determining whether the FWC's decision was correct and whether the collective agreement should be approved.

The central legal issues revolved around the interpretation and application of the Fair Work Act 2009 and the criteria for the approval of a collective agreement. The court had to consider whether the FWC had correctly applied the law in approving the agreement and whether any of the provisions were unfair. The union contended that certain clauses in the agreement, which related to the payment of allowances and other employment conditions, were not fair and should not be approved. The employer argued that the FWC had correctly assessed the agreement and that it was fair and reasonable.

In its decision, the court found that the FWC had not erred in law in approving the collective agreement. The court emphasised that the FWC has broad discretion in assessing the fairness of agreements and that its decision should not be overturned unless there was a clear error of law. The court also noted that the provisions in question were common in the industry and that they were negotiated between the parties. The union's arguments regarding unfairness were not sufficient to warrant the court setting aside the FWC’s decision. Consequently, the court upheld the FWC's decision to approve the agreement.

As a result, the court dismissed the union’s appeal and confirmed the approval of the Icon Construction Australia (NSW) Pty Ltd/CFMEU Collective Agreement 2012-2014. The agreement remains in effect, subject to the terms and conditions set out within it. The court’s decision underscores the importance of the FWC's role in approving collective agreements and the limited grounds on which the court will intervene in such matters.

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