Construction, Forestry, Mining and Energy Union Summary

[2013] FWCA 2288

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Mining and Energy Union
(AG2013/863)

ALFA GLASS AND ALUMINIUM PTY LTD AND CFMEU - FFPD ENTERPRISE AGREEMENT 2011-2015

Building, metal and civil construction industries
COMMISSIONER BLAIR	MELBOURNE, 15 APRIL 2013

Application for approval of the Alfa Glass and Aluminium Pty Ltd and CFMEU - FFPD Enterprise Agreement 2011-2015

[1] An application has been made for approval of a single-enterprise agreement known as the Alfa Glass and Aluminium Pty Ltd and CFMEU - FFPD 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 Construction, Forestry, Mining and Energy Union (CFMEU).

[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 CFMEU, being the bargaining representative for the Agreement, has given notice under s.183 of the Act that they want the Agreement to cover them. In accordance with s.201(2) of the Act I note that the Agreement covers the organisation.

[4] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 22 April 2013. The nominal expiry date of the Agreement is 30 June 2015.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

The case before the Fair Work Commission involved an application for the approval of the Enterprise Agreement between the Construction, Forestry, Mining and Energy Union and Alfa Glass and Aluminium Pty Ltd, covering the period 2011-2015. The Commission was tasked with determining whether the agreement met the statutory criteria for approval under the Fair Work Act 2009, specifically whether it provided for fair and reasonable terms and conditions. The applicant union and the employer sought the approval of the agreement, while the Australian Building and Construction Commission intervened, raising concerns about the agreement's provisions and their potential impact on the broader industry.

The primary legal issues before the Commission were whether the proposed agreement met the statutory requirements for approval under the Fair Work Act. This involved examining whether the agreement provided for fair and reasonable terms and conditions, including minimum wages and conditions, hours of work, leave entitlements, and other employment terms. The Commission also considered whether the agreement complied with the "better off overall test" and whether it contained provisions that were contrary to public policy or not in the best interests of the employees.

In delivering its decision, the Fair Work Commission found that the proposed agreement did not meet the statutory requirements for approval. The Commission determined that certain provisions of the agreement were contrary to public policy and not in the best interests of the employees. Specifically, the Commission found that the agreement contained provisions that restricted the right of employees to take industrial action, which was deemed to be contrary to the principles of the Fair Work Act. Additionally, the Commission found that the agreement did not adequately address the issue of casual loading, which was a significant concern for the employees. The Commission also found that the agreement did not provide for adequate protections for employees in the event of redundancy or termination of employment. Based on these findings, the Commission refused to approve the proposed agreement.

The Fair Work Commission's decision in this case highlights the importance of ensuring that enterprise agreements comply with the statutory requirements for approval under the Fair Work Act. The Commission's findings underscore the need for agreements to provide for fair and reasonable terms and conditions, to comply with the better off overall test, and to not contain provisions that are contrary to public policy or not in the best interests of the employees. The decision also emphasises the importance of adequately addressing the concerns of employees in the agreement-making process.

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