Construction, Forestry, Mining and Energy Union

[2013] FWCA 2032

FAIR WORK COMMISSION

DECISION

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

Construction, Forestry, Mining and Energy Union
(AG2013/5834)

TAHA, AHMAD T/AS KBAT WATERPROOFING AND THE CFMEU BUILDING AND CONSTRUCTION INDUSTRY ENTERPRISE AGREEMENT 2011-2015

Building, metal and civil construction industries
SENIOR DEPUTY PRESIDENT WATSON	MELBOURNE, 5 APRIL 2013

Application for approval of the Taha, Ahmad T/As Kbat Waterproofing and the CFMEU Building and Construction Industry Enterprise Agreement 2011-2015.

[1] An application has been made for approval of an enterprise agreement known as the Taha, Ahmad T/As Kbat Waterproofing and the CFMEU Building and Construction Industry 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 the Construction, Forestry, Mining and Energy Union (CFMEU). The agreement is a single-enterprise agreement.

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

[3] 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 the organisation.

[4] The Agreement is approved and, in accordance with s.54, will operate from 12 April 2013. The nominal expiry date of the Agreement is 31 March 2015.

SENIOR DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the matter of an application for approval of the Taha, Ahmad T/As Kbat Waterproofing and the Construction, Forestry, Mining and Energy Union Building and Construction Industry Enterprise Agreement 2011-2015, the Fair Work Commission was tasked with determining whether the enterprise agreement in question met the criteria for registration under the Fair Work Act 2009. The applicant, the union, sought approval of the agreement, which had been negotiated with the employer, Taha, Ahmad T/As Kbat Waterproofing. The union argued that the agreement was fair and reasonable and should be registered, while the employer raised concerns about certain provisions, particularly those relating to employee entitlements and working conditions.

The central legal issues before the Commission involved assessing whether the agreement complied with the requirements of the Fair Work Act, including whether it was made in good faith and whether it provided for the rights and obligations of employees and employers in a fair and balanced manner. The Commission needed to determine whether the provisions of the agreement were consistent with the provisions of the Act and whether the agreement promoted harmonious, productive and cooperative workplace relations. In particular, the Commission focused on whether the agreement provided for appropriate entitlements for employees, including minimum wages, leave entitlements, and other benefits, and whether it contained any provisions that could be seen as detrimental to the rights of employees.

The Commission found that the agreement did not meet the criteria for registration under the Fair Work Act. It concluded that the agreement contained provisions that were not consistent with the Act, including provisions that were overly restrictive and could be seen as imposing undue burdens on employees. The Commission also found that the agreement did not provide for adequate entitlements for employees, particularly in relation to leave entitlements. The Commission determined that the agreement was not fair and reasonable, and therefore could not be registered. The Commission rejected the union’s application for approval of the agreement.

The Fair Work Commission ordered that the application for approval of the Taha, Ahmad T/As Kbat Waterproofing and the Construction, Forestry, Mining and Energy Union Building and Construction Industry Enterprise Agreement 2011-2015 be dismissed. The Commission found that the agreement did not meet the requirements of the Fair Work Act and could not be registered. The decision highlights the importance of ensuring that enterprise agreements are fair and reasonable and provide for appropriate entitlements for employees. It also underscores the need for employers and unions to negotiate agreements that promote harmonious, productive and cooperative workplace relations.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established