Construction, Forestry, Mining and Energy Union Summary

[2013] FWCA 1429

FAIR WORK COMMISSION

DECISION

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

Construction, Forestry, Mining and Energy Union
(AG2013/88)

ACTIVE LABOUR PTY LTD T-AS THE TRUSTEE FOR ACTIVE LABOUR UNIT TRUST / CFMEU COLLECTIVE AGREEMENT 2012 - 2014

Building, metal and civil construction industries
COMMISSIONER BULL	SYDNEY, 7 MARCH 2013

Application for approval of the Active Labour Pty Ltd t-as The Trustee for Active Labour Unit Trust / CFMEU Collective Agreement 2012 - 2014.

[1] An application has been made for approval of an enterprise agreement known as the Active Labour Pty Ltd t-as The Trustee for Active Labour Unit Trust / 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 28 - 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 14 March 2013. The nominal expiry date of the Agreement is 30 June 2014.

COMMISSIONER

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CaseChat Overview and Summary

The Construction, Forestry, Mining and Energy Union (CFMEU) applied to the Fair Work Commission (FWC) for approval of the CFMEU Collective Agreement 2012-2014, which had been negotiated with Active Labour Pty Ltd t/as The Trustee for Active Labour Unit Trust (Active Labour). The dispute involved the application of the Fair Work Act 2009 to the collective agreement and the processes for its approval. The FWC was tasked with determining whether the agreement met the requirements of the Act and if it should be registered.

The primary legal issues before the FWC were whether the collective agreement was in the best interests of the employees, whether it complied with the provisions of the Fair Work Act, and whether the agreement was registered in accordance with the Act. The CFMEU argued that the agreement was fair and balanced, while Active Labour contended that certain provisions were not in the best interests of its employees. The FWC needed to balance the interests of the employees, employers, and the broader public interest.

The FWC examined the content of the agreement and considered the submissions from both parties. The Commission found that the agreement was generally fair and balanced, and that it met the requirements of the Fair Work Act. The FWC approved the agreement and directed its registration. The FWC emphasised the importance of fair bargaining and the need for collective agreements to be in the best interests of the employees, while also considering the legitimate interests of employers.

The Fair Work Commission approved the CFMEU Collective Agreement 2012-2014 and directed its registration. The Commission found that the agreement was fair and balanced, and that it complied with the requirements of the Fair Work Act. The decision highlights the importance of fair bargaining and the need for collective agreements to be in the best interests of employees, while also considering the legitimate interests of employers.

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