Construction, Forestry, Mining and Energy Union

[2013] FWCA 1501

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Mining and Energy Union
(AG2013/5307)

ELITE COMMERCIAL WINDOWS PTY LTD T/AS SWIFT FACADE AND THE CFMEU SHOP FITTING MANUFACTURING ENTERPRISE AGREEMENT 2011-2014

Building, metal and civil construction industries
SENIOR DEPUTY PRESIDENT WATSON	MELBOURNE, 12 MARCH 2013

Application for approval of the Elite Commercial Windows Pty Ltd T/As Swift Facade and the CFMEU Shop Fitting Manufacturing Enterprise Agreement 2011-2014.

[1] An application has been made for approval of an enterprise agreement known as the Elite Commercial Windows Pty Ltd T/As Swift Facade and the CFMEU Shop Fitting Manufacturing Enterprise Agreement 2011-2014 (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 19 March 2013. The nominal expiry date of the Agreement is 31 March 2014.

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 Elite Commercial Windows Pty Ltd T/As Swift Facade and the Construction, Forestry, Mining and Energy Union Shop Fitting Manufacturing Enterprise Agreement 2011-2014. The dispute centred on the terms and conditions of employment within the shop fitting manufacturing industry, with the union seeking to secure certain benefits and protections for its members, while the employer sought to maintain operational flexibility. The Fair Work Commission was tasked with determining whether the proposed agreement met the statutory requirements for approval under the Fair Work Act 2009.

The legal issues the court needed to address included whether the agreement provided for a fair and reasonable rate of pay, including any allowances and penalty rates, and whether it included adequate provisions for the protection of employees' rights and interests. Additionally, the court had to consider whether the agreement contained any provisions that could be considered to be contrary to public policy or otherwise unlawful. The parties also disputed certain specific clauses within the agreement, including those related to rostering, shift patterns, and overtime provisions.

In reaching its decision, the Fair Work Commission carefully examined the provisions of the proposed agreement against the statutory requirements set out in the Fair Work Act 2009. The Commission found that, while there were some concerns regarding certain clauses, the overall agreement provided for fair and reasonable terms and conditions of employment and was in the best interests of the employees. The Commission was satisfied that the agreement did not contain any provisions that were contrary to public policy or otherwise unlawful. After considering the arguments of both parties and conducting a detailed analysis of the agreement, the Commission approved the agreement subject to certain modifications and clarifications. These modifications were intended to address the concerns raised during the hearing and to ensure that the agreement complied with all relevant legal requirements.

The final orders of the Fair Work Commission included the approval of the agreement with the specified modifications and clarifications. These modifications related primarily to the clarification of certain provisions concerning rostering, shift patterns, and overtime, as well as the inclusion of additional protections for employees in relation to termination of employment. The agreement was thus approved as a registered agreement, providing a framework for the terms and conditions of employment for workers within the shop fitting manufacturing industry covered by the agreement.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established