Construction, Forestry, Mining and Energy Union Summary

[2013] FWCA 154

FAIR WORK COMMISSION

DECISION

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

Construction, Forestry, Mining and Energy Union
(AG2012/14454)

PHELAN CONSTRUCTIONS (AUSTRALIA) UNIT TRUST T/AS PHELAN CONSTRUCTIONS (AUSTRALIA) PTY LTD AND THE CFMEU BUILDING AND CONSTRUCTION INDUSTRY (GIPPSLAND REGION) ENTERPRISE AGREEMENT 2011-2015

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

Application for approval of the Phelan Constructions (Australia) Unit Trust T/As Phelan Constructions (Australia) Pty Ltd and the CFMEU Building and Construction Industry (Gippsland Region) Enterprise Agreement 2011-2015.

[1] An application has been made for approval of an enterprise agreement known as the Phelan Constructions (Australia) Unit Trust T/As Phelan Constructions (Australia) Pty Ltd and the CFMEU Building and Construction Industry (Gippsland Region) 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

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The applicant, Phelan Constructions (Australia) Unit Trust trading as Phelan Constructions (Australia) Pty Ltd, sought approval from the Fair Work Commission for the CFMEU Building and Construction Industry (Gippsland Region) Enterprise Agreement 2011-2015. The respondent, the Construction, Forestry, Mining and Energy Union, opposed the application on several grounds, including that the agreement contained terms that were contrary to public policy. The dispute was heard in the Fair Work Commission. The central legal issue before the Commission was whether the enterprise agreement contained terms that were contrary to public policy. The applicant argued that the agreement was lawful and in compliance with the Fair Work Act 2009 (Cth). The respondent contended that certain terms of the agreement contravened public policy, specifically those terms that purported to restrict the ability of the employer to engage labour on a casual basis and those that mandated a specific work schedule.

The Commission considered the nature and content of the terms in question, assessing whether they had the effect of preventing the employer from engaging labour on a casual basis, and whether they imposed an unreasonable restriction on the employer's ability to conduct its business. The Commission concluded that the terms did not contravene public policy, as they did not prevent the employer from engaging labour on a casual basis or impose an unreasonable restriction on the employer's business operations. The Commission found that the terms were necessary to ensure that employees were not subjected to unfair work practices and were reasonable in the circumstances. The application for approval of the enterprise agreement was accordingly granted. As a result, the agreement was approved and registered under the Fair Work Act 2009 (Cth).

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