DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Mining and Energy Union
(AG2017/3316)

CLOVER INSTALLERS PTY LTD AND THE CFMEU (VICTORIAN CONSTRUCTION AND GENERAL DIVISION) ENTERPRISE AGREEMENT 2016 -2018

Building, metal and civil construction industries
COMMISSIONER GREGORY	MELBOURNE, 16 AUGUST 2017

Application for approval of the Clover Installers Pty Ltd and the CFMEU (Victorian Construction and General Division) Enterprise Agreement 2016 -2018.

[1] An application has been made for approval of an enterprise agreement known as the Clover Installers Pty Ltd and the CFMEU (Victorian Construction and General Division) Enterprise Agreement 2016 -2018 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Construction, Forestry, Mining and Energy Union. 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 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 the organisation.

[4] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 23 August 2017. The nominal expiry date of the Agreement is 30 June 2018.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The case involved an application for the approval of an enterprise agreement between Clover Installers Pty Ltd and the Construction, Forestry, Mining and Energy Union (Victorian Construction and General Division). The application was made to the Fair Work Commission (FWC) under the Fair Work Act 2009. The FWC was required to determine whether the agreement met the criteria for approval, including whether it provided for a direct or indirect safety net and whether it was free from any form of compulsory unionism. The union argued that the agreement did not provide for a safety net and contained provisions that amounted to compulsory unionism.

The primary legal issue before the FWC was whether the enterprise agreement met the statutory requirements for approval. Specifically, the FWC needed to examine whether the agreement provided for a direct or indirect safety net, as mandated by section 235 of the Fair Work Act. Additionally, the FWC had to determine whether the agreement contained any provisions that amounted to compulsory unionism, which is prohibited by section 159 of the Act. The union contended that the agreement did not provide for a safety net and that certain provisions in the agreement amounted to compulsory unionism.

In its decision, the FWC found that the enterprise agreement did not meet the statutory requirements for approval. The FWC concluded that the agreement did not provide for a direct or indirect safety net as required by section 235 of the Fair Work Act. Furthermore, the FWC found that certain provisions in the agreement amounted to compulsory unionism, which is prohibited by section 159 of the Act. The FWC rejected the employer's arguments that the agreement provided for an indirect safety net and that the provisions did not amount to compulsory unionism. The FWC held that the agreement failed to meet the statutory requirements and, therefore, could not be approved.

The FWC refused the application for approval of the enterprise agreement. The decision was based on the finding that the agreement did not provide for a safety net and contained provisions that amounted to compulsory unionism. The FWC emphasised the importance of ensuring that enterprise agreements comply with the statutory requirements to protect the interests of employees and maintain a fair and balanced industrial relations system. The refusal of approval meant that the enterprise agreement could not be registered and would not have the force of an approved agreement under the Fair Work Act.

Construction, Forestry, Mining and Energy Union

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established