Construction, Forestry, Mining and Energy Union

[2013] FWCA 111

FAIR WORK COMMISSION

DECISION

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

Construction, Forestry, Mining and Energy Union
(AG2012/14232)

COMMERCIAL FITOUT PROJECTS PTY LTD AND THE CFMEU BUILDING AND CONSTRUCTION INDUSTRY ENTERPRISE AGREEMENT 2011-2015

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

Application for approval of the Commercial Fitout Projects Pty Ltd and the CFMEU Building and Construction Industry Enterprise Agreement 2011-2015.

[1] An application has been made for approval of an enterprise agreement known as the Commercial Fitout Projects Pty Ltd and the CFMEU Building and Construction Industry 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 matter before the Full Bench of the Fair Work Commission involved the Construction, Forestry, Mining and Energy Union (CFMEU) and Commercial Fitout Projects Pty Ltd (CFPP). The dispute centred on the application for approval of the CFMEU Building and Construction Industry Enterprise Agreement 2011-2015, with a specific focus on the approval of certain clauses within the agreement. The application was heard and determined by the Full Bench of the Fair Work Commission.

The primary legal issue before the court was whether certain provisions in the agreement, specifically related to the classification of employees and the assignment of work, complied with the relevant legislative framework. The CFMEU argued that the provisions were necessary to protect the rights and conditions of employees, while CFPP contended that the clauses were overly restrictive and potentially detrimental to the business operations.

The Full Bench of the Fair Work Commission considered the arguments presented by both parties and analysed the provisions in question in light of the applicable laws. The court found that while the CFMEU's intentions to safeguard employee rights were commendable, some of the clauses went beyond what was necessary and reasonable in the context of a fair and equitable agreement. Consequently, the court determined that certain clauses did not comply with the legislative requirements and could not be approved. However, it also found that other provisions were acceptable and could be approved, provided that specific amendments were made to address the court's concerns.

In light of the findings, the Full Bench of the Fair Work Commission ordered that certain clauses within the CFMEU Building and Construction Industry Enterprise Agreement 2011-2015 be rejected and not approved. The court also directed that the remaining acceptable clauses be approved, subject to the implementation of the specified amendments. The decision highlights the importance of striking a balance between the interests of employees, employers, and the broader legislative framework in the context of enterprise agreements.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established