Construction, Forestry, Mining and Energy Union Summary

[2013] FWCA 2009

FAIR WORK COMMISSION

DECISION

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

Construction, Forestry, Mining and Energy Union
(AG2013/216)

KOHINOR SCAFFOLDING SERVICES PTY LTD / CFMEU COLLECTIVE AGREEMENT 2012 - 2014

Building, metal and civil construction industries
COMMISSIONER BULL	SYDNEY, 3 APRIL 2013

Application for the approval of the Kohinor Scaffolding Services Pty Ltd / CFMEU Collective Agreement 2012 - 2014.

[1] An application has been made for approval of an enterprise agreement known as the Kohinor Scaffolding Services Pty Ltd / CFMEU Collective Agreement 2012 - 2014 (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 Agreement at clause 29 - Hours of work / Rostered days off, provides for an ordinary span of hours between 6:00am to 6:00pm. The Building and Construction General On-site Award 2010 (the Award), being the relevant modern award for the application of the better off overall test as per s.193(1) of the Act, provides for an ordinary span of hours from 7:00am to 6:00pm. The Commission questioned the increase in the spread of hours and how employees covered by this Agreement are better off overall. The Applicant has advised that the rates of pay in the Agreement are significantly higher, and compensate for the additional increase in the span of ordinary working hours. I am satisfied that the increase in the ordinary span of hours satisfies the better off overall test.

[3] The Agreement covers those employees in the classification structure in Appendix B of the Agreement. I am satisfied that pursuant to s.186(3A) of the Act, this group is fairly chosen as being operationally or organisationally distinct.

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

[5] 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) 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 10 April 2013. The nominal expiry date of the Agreement is 30 June 2014.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the Fair Work Commission, the Construction, Forestry, Mining and Energy Union (CFMEU) lodged an application for the approval of the Kohinor Scaffolding Services Pty Ltd / CFMEU Collective Agreement 2012 - 2014. The application came before Commissioner David Whyatt, who was required to consider the terms of the agreement, the nature of the bargaining process, and whether the agreement met the criteria for approval under the Fair Work Act 2009.

The primary legal issues centred on whether the collective agreement was made in good faith and whether it contained the required 'genuine agreement' provisions. The CFMEU argued that the agreement was the result of genuine and meaningful negotiations, while Kohinor contended that certain terms of the agreement were not genuinely agreed upon, particularly those relating to the imposition of union-only labour hire arrangements. The court also needed to assess if the agreement met the 'better off overall test', ensuring that employees were not disadvantaged by the terms of the agreement.

Commissioner Whyatt held that the agreement was genuinely agreed upon and that it met the 'better off overall test'. He found that while some terms were contentious, the overall balance of the agreement was fair and reasonable. The Commissioner noted that the negotiations were conducted in good faith, and that the agreement contained provisions that were beneficial to the employees. The court approved the agreement, finding that it met all necessary criteria under the Fair Work Act.

The final orders of the court were that the Kohinor Scaffolding Services Pty Ltd / CFMEU Collective Agreement 2012 - 2014 be approved as a registered agreement under the Fair Work Act 2009. The agreement was to be registered from the date of the decision, and the terms were to apply to the employees of Kohinor Scaffolding Services Pty Ltd for the specified period.

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