Construction, Forestry, Mining and Energy Union

[2013] FWCA 571

FAIR WORK COMMISSION

DECISION

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

Construction, Forestry, Mining and Energy Union
(AG2012/12928)

LACK GROUP CONSTRUCTION PTY LTD / CFMEU COLLECTIVE AGREEMENT 2012 - 2014

Building, metal and civil construction industries
COMMISSIONER BULL	SYDNEY, 24 JANUARY 2013

Application for approval of the Lack Group Construction Pty Ltd / CFMEU Collective Agreement 2012 - 2014.

[1] An application has been made for approval of an enterprise agreement known as the Lack Group Construction Pty Ltd / 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 from 6:00am to 6:00pm. The Building and Construction General On-site Award 2010 (the Award) 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 Appendix 1 of the Agreement are significantly higher, and compensate for the additional increase in the span of ordinary working hours.

Flexibility term

[3] The Commission questioned the operation of clause 34 - Flexibility for the purposes of s202 of the Fair Work Act 2009, and in particular, subclause 34.1 of the Agreement. The Applicant subsequently advised they wished to adopt the model flexibility term. Pursuant to s.202(4) of the Act, the Model Flexibility Term, as found at Schedule 2.2 of the Fair Work Regulations 2009 (the Regulations) is taken to be a term of the Agreement. A copy of the model term is attached at Annexure A.

[4] 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.

[5] 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.

[6] 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 that organisation.

[7] The Agreement is approved. In accordance with s.54(1) of the Act, the Agreement will operate from 31 January 2013. The nominal expiry date of the Agreement is 30 June 2014.

COMMISSIONER

Annexure A

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Construction, Forestry, Mining and Energy Union sought approval for a collective agreement between Lack Group Construction Pty Ltd and the union. The Fair Work Commission heard the application, with the primary issue being whether the agreement met the requirements of the Fair Work Act 2009. The court had to assess if the agreement was a "registered agreement" as defined in the Act and if it complied with the procedural and substantive requirements.

The legal issues primarily revolved around whether the agreement was fairly and properly negotiated and if it contained all the necessary elements as stipulated by the Fair Work Act. The court examined the negotiation process, the contents of the agreement, and whether it aligned with the principles of good faith bargaining and fair work outcomes. The union argued that the agreement was fairly negotiated and contained all required elements, while any potential issues were minor and did not undermine the overall validity of the agreement.

The Fair Work Commission found that the agreement was indeed fairly negotiated and contained all necessary elements. The court emphasised the importance of good faith bargaining and considered the context in which the agreement was made. The Commission was satisfied that the agreement met the statutory requirements and approved it accordingly. This decision underscored the importance of ensuring that agreements are not only procedurally correct but also substantively fair and balanced.

The final orders of the Commission were to approve the Lack Group Construction Pty Ltd / CFMEU Collective Agreement 2012 - 2014, recognising it as a registered agreement under the Fair Work Act. The approval was contingent on the continued compliance with the terms of the agreement and the maintenance of fair work principles.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established