Construction, Forestry, Mining and Energy Union

[2013] FWCA 2794

FAIR WORK COMMISSION

DECISION

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

Construction, Forestry, Mining and Energy Union
(AG2013/6239)

PHOENIX REFRACTORIES AUSTRALIA - CFMEU-NATIONAL (EXCLUDING THE STATE OF VICTORIA AND WESTERN AUSTRALIA) REFRACTORY ENTERPRISE BARGAINING AGREEMENT 2013.

Building, metal and civil construction industries
COMMISSIONER MACDONALD	SYDNEY, 7 MAY 2013

Application for approval of the Phoenix Refractories Australia - CFMEU- National (excluding the State of Victoria and Western Australia) Refractory Enterprise Bargaining Agreement 2013 .

[1] An application has been made for approval of an enterprise agreement known as the

Phoenix Refractories Australia - CFMEU-National (excluding the State of Victoria and Western Australia) Refractory Enterprise Bargaining Agreement 2013 (the Agreement). The application was made by the CFMEU 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 14 May 2013. The nominal expiry date of the Agreement is 31 December 2013.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Construction, Forestry, Mining and Energy Union (CFMEU) made an application for approval of the Phoenix Refractories Australia - CFMEU- National (excluding the State of Victoria and Western Australia) Refractory Enterprise Bargaining Agreement 2013. The Fair Work Commission (FWC) heard the application. The matter was a dispute between the CFMEU and Phoenix Refractories Australia, a company in the refractory industry, concerning the terms and conditions of employment of workers within the industry. The FWC was required to determine whether the proposed enterprise bargaining agreement (EBA) complied with the requirements of the Fair Work Act 2009 (Cth). Specifically, the FWC needed to consider if the EBA met the genuine agreement test, was in the best interests of the employees it covered, and did not contain any terms that were contrary to public policy.

The FWC examined the process by which the EBA was negotiated and whether it was genuinely agreed to by both parties. The FWC also assessed if the EBA was in the best interests of the employees it covered, taking into account the needs and circumstances of the employees, and whether it provided fair and reasonable terms and conditions of employment. Furthermore, the FWC considered whether any terms in the EBA were contrary to public policy, such as terms that may incentivise unsafe working practices or undermine the health and safety of employees.

The FWC found that the EBA was genuinely agreed to by both parties and met the requirements of the Fair Work Act 2009 (Cth). The FWC determined that the EBA was in the best interests of the employees it covered, providing fair and reasonable terms and conditions of employment. The FWC also found that the EBA did not contain any terms that were contrary to public policy. Consequently, the FWC approved the EBA, making it a legally binding agreement between the parties.

The FWC approved the Phoenix Refractories Australia - CFMEU- National (excluding the State of Victoria and Western Australia) Refractory Enterprise Bargaining Agreement 2013. This decision is final and binding on the parties involved. The approved EBA will govern the terms and conditions of employment for the relevant employees within the refractory industry, excluding the states of Victoria and Western Australia.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established