Construction, Forestry, Mining and Energy Union

[2013] FWCA 1366

FAIR WORK COMMISSION

DECISION

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

Construction, Forestry, Mining and Energy Union
(AG2013/5285)

THE JASWAY UNIT TRUST T/AS KARMOL CONSTRUCTIONS PTY LTD AND THE CFMEU RIGGER / STEEL ERECTOR ENTERPRISE AGREEMENT 2011-2015

Building, metal and civil construction industries
SENIOR DEPUTY PRESIDENT WATSON	MELBOURNE, 5 MARCH 2013

Application for approval of the The Jasway Unit Trust T/As Karmol Constructions Pty Ltd and the CFMEU Rigger / Steel Erector Enterprise Agreement 2011-2015.

[1] An application has been made for approval of an enterprise agreement known as the The Jasway Unit Trust T/As Karmol Constructions Pty Ltd and the CFMEU Rigger / Steel Erector 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 12 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 for the approval of the Jasway Unit Trust trading as Karmol Constructions Pty Ltd and the Construction, Forestry, Mining and Energy Union Rigger / Steel Erector Enterprise Agreement 2011-2015. The union had sought approval of the enterprise agreement, which aimed to establish the terms and conditions of employment for riggers and steel erectors employed by Karmol Constructions. The union contended that the agreement was fair and appropriate, while Karmol Constructions opposed the application, arguing that certain provisions were harsh, unreasonable, and not genuinely agreed upon.

The central legal issues before the Commission were whether the agreement was genuinely negotiated, and if it met the criteria for being fair and appropriate. Specifically, the Commission had to assess whether the agreement complied with the provisions of the Fair Work Act 2009, including the requirement for genuine negotiation and the 'better off overall test'. The Commission also considered whether the agreement contained provisions that were harsh, unreasonable, or unconscionable.

The Commission found that the agreement was genuinely negotiated and met the 'better off overall test'. The Commission noted that the agreement provided for a number of improvements for employees, including increased wages and better working conditions. While the employer had argued that certain provisions were harsh, unreasonable, or not genuinely agreed upon, the Commission found that these provisions were not so extreme as to render the agreement unfair or inappropriate. The Commission approved the enterprise agreement, finding that it was a genuine agreement that met the statutory requirements.

The Fair Work Commission approved the Jasway Unit Trust trading as Karmol Constructions Pty Ltd and the Construction, Forestry, Mining and Energy Union Rigger / Steel Erector Enterprise Agreement 2011-2015. The Commission found that the agreement was genuinely negotiated and met the 'better off overall test', and that any provisions that were harsh, unreasonable, or not genuinely agreed upon did not render the agreement unfair or inappropriate. The Commission's decision provides guidance to employers and unions on the requirements for a valid enterprise agreement.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established