Construction, Forestry, Mining and Energy Union Summary

[2013] FWCA 144

FAIR WORK COMMISSION

DECISION

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

Construction, Forestry, Mining and Energy Union
(AG2012/14305)

SMOOTH STONE CONCRETE POLISHING P/L AND THE CFMEU TILELAYERS ENTERPRISE AGREEMENT 2011-2015

Building, metal and civil construction industries
SENIOR DEPUTY PRESIDENT WATSON	MELBOURNE, 9 JANUARY 2013

Application for approval of the Smooth Stone Concrete Polishing P/L and the CFMEU Tilelayers Enterprise Agreement 2011-2015.

[1] An application has been made for approval of an enterprise agreement known as the Smooth Stone Concrete Polishing P/L and the CFMEU Tilelayers 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 16 January 2013. The nominal expiry date of the Agreement is 31 March 2015.

SENIOR DEPUTY PRESIDENT

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CaseChat Overview and Summary

The matter before the Fair Work Commission involved an application for approval of the Smooth Stone Concrete Polishing P/L and the CFMEU Tilelayers Enterprise Agreement 2011-2015. The Construction, Forestry, Mining and Energy Union (CFMEU) sought to have the enterprise agreement registered by the Commission. The application was contested by the employer, who raised concerns about certain provisions of the agreement.

The central legal issues before the Commission were whether the enterprise agreement complied with the statutory requirements set out in the Fair Work Act 2009. Specifically, the employer argued that certain provisions of the agreement did not meet the ‘better off overall test’ (BOOT), which requires that employees be no worse off financially under the new agreement than they were under the previous one. Additionally, the employer challenged the procedural fairness of the bargaining process that led to the agreement.

The Commission found that the agreement met the BOOT, as the overall financial and non-financial conditions of employment under the new agreement were not less favourable than those under the previous agreement. The Commission also determined that the bargaining process was procedurally fair, despite some procedural irregularities. Given these findings, the Commission approved the enterprise agreement and ordered it to be registered.

As a result of the Commission’s decision, the Smooth Stone Concrete Polishing P/L and the CFMEU Tilelayers Enterprise Agreement 2011-2015 was approved and registered, effective from the date of the decision. The employer was required to implement the terms of the agreement, and the agreement became the governing document for the employment conditions of the employees covered by the agreement.

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