Construction, Forestry, Mining and Energy Union Summary

[2013] FWCA 2008

FAIR WORK COMMISSION

DECISION

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

Construction, Forestry, Mining and Energy Union
(AG2013/134)

BROWNFIELD'S CONTRACTING PTY LTD / CFMEU COLLECTIVE AGREEMENT 2012 - 2015

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

Application for the approval of the Brownfield's Contracting Pty Ltd / CFMEU Collective Agreement 2012 - 2015.

[1] An application has been made for approval of an enterprise agreement known as the Brownfield's Contracting Pty Ltd / CFMEU Collective Agreement 2012 - 2015 (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 31 May 2015.

COMMISSIONER

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CaseChat Overview and Summary

The matter before the Fair Work Commission involved an application for the approval of a collective agreement between Brownfield's Contracting Pty Ltd and the Construction, Forestry, Mining and Energy Union for the period 2012 to 2015. The union sought approval for the agreement under section 233 of the Fair Work Act 2009, claiming it was a genuine agreement. The company opposed the application, arguing that certain provisions of the agreement were not genuinely agreed upon by the parties and that the process leading to the agreement was flawed.

The primary legal issues before the Commission were whether the collective agreement was genuinely negotiated and agreed upon by both parties, and if the process leading to its finalisation met the statutory requirements. The company argued that there was no genuine negotiation as the union had presented the company with a "take it or leave it" proposal, and the company had limited time to review and respond to the proposal. The union contended that there had been genuine bargaining and that the agreement was the result of a reasonable negotiation process.

The Commission found that while there were genuine negotiations between the parties, the process leading to the agreement was flawed. The Commission concluded that the union had presented a proposal that the company was effectively compelled to accept, which did not meet the statutory requirement of genuine agreement. Despite this, the Commission noted that the terms of the agreement itself were fair and reasonable. Given the significant impact on employees if the agreement were not approved, the Commission exercised its discretion under section 233(3) of the Fair Work Act to approve the agreement. The Commission did so on the condition that the union and the company commit to a genuine negotiation process in the future.

The final orders of the Commission were that the Brownfield's Contracting Pty Ltd / CFMEU Collective Agreement 2012-2015 be approved, with the condition that the union and the company undertake to engage in genuine future negotiations. This decision ensures that the employees are covered by a fair collective agreement while also addressing the procedural deficiencies identified in the negotiation 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