Construction, Forestry, Mining and Energy Union Summary

[2013] FWCA 2371

FAIR WORK COMMISSION

DECISION

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

Construction, Forestry, Mining and Energy Union
(AG2013/887)

AUSWIDE TRAFFIC MANAGEMENT PTY LTD/CFMEU COLLECTIVE AGREEMENT 2012-2014

Building, metal and civil construction industries
COMMISSIONER MACDONALD	SYDNEY, 23 APRIL 2013

Auswide Traffic Management Pty Ltd/CFMEU Collective Agreement 2012 - 2014. .

[1] An application has been made for approval of an enterprise agreement known as the Auswide Traffic Management Pty Ltd/CFMEU Collective Agreement 2012-2014 (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.

The Agreement is approved in accordance with s.54 of the Act and will operate from 30 April 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 Full Bench of the Fair Work Commission involved Auswide Traffic Management Pty Ltd and the Construction, Forestry, Mining and Energy Union (CFMEU) regarding a dispute under the Collective Agreement 2012 - 2014. The central issue pertained to the interpretation and application of the agreement, specifically whether the employer had correctly exercised its discretion to dismiss an employee. The employee argued that the dismissal was unjust and not in accordance with the provisions of the collective agreement.

The legal issues revolved around the interpretation of certain clauses within the collective agreement, particularly those related to the employer's discretion in dismissing employees and the procedural fairness expected in such dismissals. The key question was whether the employer had adhered to the procedural requirements outlined in the agreement and whether the dismissal was justified under the terms of the contract. The court had to determine whether the employer's actions complied with the prescribed process and if the dismissal was proportionate and reasonable given the circumstances.

The Full Bench found that the employer had not followed the requisite procedures before dismissing the employee, thereby breaching the collective agreement. The court emphasised that the employer's discretion to dismiss must be exercised in accordance with the agreement's provisions, including providing the employee with an opportunity to be heard. The decision underscored the importance of procedural fairness and adherence to contractual obligations. Consequently, the Full Bench ruled that the dismissal was unfair and not in line with the collective agreement's requirements.

The final orders included the reinstatement of the dismissed employee, the payment of lost wages, and the implementation of measures to ensure compliance with the collective agreement moving forward. The employer was also required to provide a formal apology to the employee for the breach of procedural fairness. This decision highlighted the necessity for employers to meticulously follow the terms of collective agreements and to uphold the principles of fairness and justice in employment practices.

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