Construction, Forestry, Mining and Energy Union

[2013] FWCA 1743

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Mining and Energy Union
(AG2013/5667)

MORNINGTON FORMWORK PTY LTD AND THE CFMEU BUILDING AND CONSTRUCTION INDUSTRY ENTERPRISE AGREEMENT 2011-2015

Building, metal and civil construction industries
SENIOR DEPUTY PRESIDENT WATSON	MELBOURNE, 21 MARCH 2013

Application for approval of the Mornington Formwork Pty Ltd 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 Mornington Formwork Pty Ltd 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 28 March 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

The case before the Fair Work Commission involved an application for the approval of the Mornington Formwork Pty Ltd and the Construction, Forestry, Mining and Energy Union Building and Construction Industry Enterprise Agreement 2011-2015. The agreement was submitted to the Commission under section 232 of the Fair Work Act 2009, seeking its registration and approval. The union and the employer were parties to the agreement, and the Commission was tasked with determining whether the agreement met the necessary criteria for approval.

The primary legal issue before the Commission was whether the agreement contained provisions that were contrary to the public interest. Specifically, the Commission needed to assess if any aspects of the agreement would have an adverse effect on the operation of a business. The agreement included a clause that provided for a reduction in the ordinary hours of work for employees under certain circumstances, and this was a point of contention. The Commission had to consider whether this provision was in the public interest, particularly in light of the potential impact on business operations.

In reaching its decision, the Commission considered the overall nature of the agreement, including its provisions and the context in which it was negotiated. The Commission noted that the agreement was the product of good faith bargaining between the parties and was designed to regulate the employment conditions of employees within the industry. The Commission found that the reduction in working hours provision was intended to provide flexibility and was not detrimental to the operation of the business. Consequently, the Commission concluded that the agreement did not contain any provisions that were contrary to the public interest and approved the agreement.

The Commission's decision was that the Mornington Formwork Pty Ltd and the Construction, Forestry, Mining and Energy Union Building and Construction Industry Enterprise Agreement 2011-2015 should be approved and registered. The agreement was found to be in compliance with the relevant legislative requirements, and the reduction in working hours provision did not pose a threat to the operation of the business. The Commission's approval of the agreement ensured that it would have effect from the date of registration.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established