Construction, Forestry, Mining and Energy Union

[2013] FWCA 151

FAIR WORK COMMISSION

DECISION

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

Construction, Forestry, Mining and Energy Union
(AG2012/14405)

BENTLEIGH SIGN COMPANY AUSTRALIA UNIT TRUST T/AS BENTLEIGH SIGNS 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 Bentleigh Sign Company Australia Unit Trust T/As Bentleigh Signs 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 Bentleigh Sign Company Australia Unit Trust T/As Bentleigh Signs 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 Construction, Forestry, Mining and Energy Union (CFMEU) applied to the Fair Work Commission for approval of the Bentleigh Sign Company Australia Unit Trust T/As Bentleigh Signs and the CFMEU Building and Construction Industry Enterprise Agreement 2011-2015. The application was opposed by the employer, who argued that the agreement contained a term that would allow employees to strike during the life of the agreement, which was contrary to public interest provisions in the Fair Work Act 2009. The CFMEU argued that the term was not a striking term and did not contravene the Act.

The central legal issue before the Fair Work Commission was whether the term in the enterprise agreement that allowed employees to strike during the life of the agreement was contrary to the public interest provisions in the Fair Work Act. The Commission had to consider the meaning of the term, the context in which it was used, and whether it was consistent with the public interest provisions in the Act. The Commission also had to consider the potential impact of the term on the industrial relations system and the broader community.

The Fair Work Commission held that the term in the enterprise agreement was not a striking term and did not contravene the public interest provisions in the Fair Work Act. The Commission found that the term was intended to provide a mechanism for resolving disputes between the employer and employees, and that it was not intended to allow employees to strike during the life of the agreement. The Commission also found that the term was consistent with the public interest provisions in the Act, as it provided for the resolution of disputes in a manner that was fair and reasonable. The Commission approved the enterprise agreement.

The Fair Work Commission approved the Bentleigh Sign Company Australia Unit Trust T/As Bentleigh Signs and the CFMEU Building and Construction Industry Enterprise Agreement 2011-2015. The Commission found that the term in the agreement was not a striking term and did not contravene the public interest provisions in the Fair Work Act. The Commission also found that the term was consistent with the public interest provisions in the Act, as it provided for the resolution of disputes in a manner that was fair and reasonable. The Commission approved the enterprise agreement, subject to certain modifications to ensure that it complied with the Act.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established