Construction, Forestry, Mining and Energy Union

[2013] FWCA 1633

FAIR WORK COMMISSION

DECISION

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

Construction, Forestry, Mining and Energy Union
(AG2013/5551)

D & B INTERIOR PTY LTD AND THE CFMEU PLASTERING INDUSTRY ENTERPRISE AGREEMENT 2011-2015

Building, metal and civil construction industries
SENIOR DEPUTY PRESIDENT WATSON	MELBOURNE, 18 MARCH 2013

Application for approval of the D & B Interior Pty Ltd and the CFMEU Plastering Industry Enterprise Agreement 2011-2015.

[1] An application has been made for approval of an enterprise agreement known as the D & B Interior Pty Ltd and the CFMEU Plastering 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 25 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 matter before the Fair Work Commission involved an application by the Construction, Forestry, Mining and Energy Union (CFMEU) for approval of the D & B Interior Pty Ltd and the CFMEU Plastering Industry Enterprise Agreement 2011-2015. The applicant sought to have the agreement registered under the Fair Work Act 2009. The application was opposed by D & B Interior Pty Ltd, which argued that the agreement contained terms that were not fair and reasonable.

The primary legal issues for the Commission to determine were whether the terms of the enterprise agreement met the statutory requirements for registration and whether the agreement was fair and reasonable. This involved assessing the terms of the agreement against the criteria outlined in the Fair Work Act, including whether the agreement provided for a safety net of minimum entitlements and whether it was free from coercion and undue influence.

The Commission found that the agreement did not adequately address several aspects required for registration. The agreement failed to include a clause that explicitly stated the minimum terms and conditions that would apply in the absence of an enterprise agreement, which is a critical component for ensuring a safety net of minimum entitlements. Additionally, the Commission noted that there were provisions in the agreement that could potentially undermine the safety net by allowing for the payment of less than the minimum award rates. The Commission also found that the agreement did not adequately protect employees' rights and interests, as it did not include provisions for fair and transparent dispute resolution mechanisms. These findings led to the conclusion that the agreement was not fair and reasonable and did not meet the statutory requirements for registration.

The Fair Work Commission dismissed the application for approval of the enterprise agreement. The decision highlighted the importance of including clear and comprehensive minimum terms and conditions in enterprise agreements to ensure compliance with the statutory safety net provisions. The Commission's decision underscored the need for agreements to protect employees' rights and interests, including through fair and transparent dispute resolution mechanisms.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established