Construction, Forestry, Mining and Energy Union

[2013] FWCA 2656

FAIR WORK COMMISSION

DECISION

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

Construction, Forestry, Mining and Energy Union
(AG2013/5109)

TOWER CONSORTIUM PTY LTD / CFMEU COLLECTIVE AGREEMENT (ACT) 2013-2016

Building, metal and civil construction industries
COMMISSIONER BULL	SYDNEY, 1 MAY 2013

Application for approval of the Tower Consortium Pty Ltd / CFMEU Collective Agreement (ACT) 2013-2016.

[1] An application has been made for approval of an enterprise agreement known as the Tower Consortium Pty Ltd / CFMEU Collective Agreement (ACT) 2013-2016 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single-enterprise agreement.

[2] The Commission wrote to the Applicant, being the Construction, Forestry, Mining and Energy Union (CFMEU), who is also a bargaining representative for the Agreement with respect to clause 21 - Hours of work, of the Agreement as the ordinary span of hours did not appear to be stated in the Agreement. The Applicant advised the Commission that the ordinary span of hours are to be those as per the Building and Construction General On-site Award 2010 (the Award), being 7:00am to 6:00pm.

[3] In subclause 21.7 of the Agreement the Commission noted‘work is prohibited on the following public holidays’ and requested the Applicant provide correspondence outlining how this subclause does not contravene s.114 of the Act, that an employer may request an employee to work on a public holiday if the request is reasonable. The Applicant advised the Commission that clause 21 does not operate as a blanket prohibition on working public holidays nor does it inhibit the employer from requesting that such days be worked.

[4] I am satisfied that each of the requirements of s.186, including the requirement that the group of employees covered by the Agreement has been fairly chosen, and ss.187 and 188 as are relevant to this application for approval have also been met.

[5] 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 this organisation.

[6] The Agreement is approved. In accordance with s.54(1) of the Act, the Agreement will operate from 8 May 2013. The nominal expiry date of the Agreement is 1 March 2016.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the matter of an application for the approval of the Tower Consortium Pty Ltd / CFMEU Collective Agreement (ACT) 2013-2016, the Construction, Forestry, Mining and Energy Union sought approval from the Fair Work Commission. The applicant, a trade union, entered into a collective agreement with Tower Consortium Pty Ltd, a construction company. The dispute involved the terms and conditions of employment within the agreement, which the union argued were necessary to address specific industry standards and worker protections. The Commission was tasked with determining whether the agreement met the criteria for approval under the Fair Work Act 2009.

The central legal issue before the Commission was whether the collective agreement met the requirements for approval as set out in the Fair Work Act. Specifically, the Commission had to consider if the agreement contained provisions that were inconsistent with the national workplace relations system or failed to comply with other statutory obligations. The union argued that the agreement was necessary to ensure fair working conditions, while the company contended that some provisions were overly restrictive and detrimental to business operations.

The Fair Work Commission carefully examined the provisions of the agreement, assessing their alignment with national workplace standards and the overarching objectives of the Fair Work Act. The Commission determined that while most provisions were consistent with the national system, certain clauses required modification to ensure they did not impose undue restrictions on the employer. After making the necessary amendments, the Commission concluded that the agreement, in its revised form, met the statutory criteria for approval. The union's arguments for improved worker protections were acknowledged, and the modified agreement was found to strike an appropriate balance between the interests of the employees and the employer.

The final orders of the Commission included the approval of the collective agreement, subject to the modifications made to specific clauses. The agreement was to be implemented in its amended form, ensuring compliance with the national workplace relations system and other relevant legislation. The decision underscored the importance of maintaining a fair and balanced approach to collective bargaining, recognising the legitimate interests of both employers and employees.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established