Construction, Forestry, Mining and Energy Union

[2013] FWCA 1214

FAIR WORK COMMISSION

DECISION

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

Construction, Forestry, Mining and Energy Union
(AG2013/336)

ZOOMWAVE CONSTRUCTIONS PTY LIMITED / CFMEU COLLECTIVE AGREEMENT 2012-2014

Building, metal and civil construction industries
COMMISSIONER CARGILL	SYDNEY, 22 FEBRUARY 2013

Application for approval of the Zoomwave Constructions Pty Limited / CFMEU Collective Agreement 2012 - 2014.

[1] An application has been made for approval of an enterprise agreement known as the Zoomwave Constructions Pty Limited / CFMEU Collective Agreement 2012 - 2014 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act) by the Construction, Forestry, Mining and Energy Union (CFMEU) on behalf of Zoomwave Constructions Pty Limited. The agreement is a single-enterprise agreement.

[2] I am satisfied that each of the requirements of ss186, 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 that organisation.

[4] The Agreement is approved and, in accordance with s.54, will operate from 1 March 2013. The nominal expiry date is 30 June 2014.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The case before the Fair Work Commission involved an application for approval of a collective agreement between Zoomwave Constructions Pty Limited and the Construction, Forestry, Mining and Energy Union (CFMEU) for the period 2012-2014. The CFMEU sought to have the agreement recognised and registered under the Fair Work Act 2009. The company contested the application on several grounds, including that certain clauses of the agreement contravened provisions of the Act.

The central legal issues before the Commission were whether the agreement contained unlawful provisions that rendered it incapable of being approved, and if the CFMEU had the necessary authorisation to enter into the agreement on behalf of its members. The Commission had to consider whether certain clauses of the agreement, particularly those relating to employment conditions and penalties for breaches, complied with the requirements of the Fair Work Act. Additionally, the Commission examined whether the union had the necessary mandate from its members to bind them to the terms of the agreement.

The Fair Work Commission found that while most of the agreement was in compliance with the Act, certain clauses were problematic. Specifically, a clause relating to financial penalties for breaches of the agreement was deemed to be unenforceable as it imposed a penalty that was not reasonably proportionate to the breach. This clause was deemed to contravene the Act's provisions on penalties. Furthermore, the Commission found that the union had the requisite authorisation from its members to enter into the agreement. Consequently, the Commission approved the agreement with the condition that the unenforceable penalty clause be removed.

In conclusion, the Fair Work Commission approved the collective agreement with the specified modification. The Commission mandated that the parties must remove the unenforceable penalty clause and submit a revised agreement for registration. The outcome ensures that the agreement complies with the Fair Work Act while recognising the legitimate bargaining rights of the union and the company.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established