Construction, Forestry, Mining and Energy Union Summary

[2017] FWCA 3845

FAIR WORK COMMISSION

decision

Fair Work Act 2009

s.185—Enterprise agreement

Construction, Forestry, Mining and Energy Union

(AG2017/2809)

LSC FABRICATIONS TRUST (THE TRUSTEE FOR) T/As LSC FABRICATIONS PTY LTD and the CFMEU (Victorian Construction and General Division) Enterprise Agreement 2016 - 2018

Building, metal and civil construction industries
Commissioner Gregory	MELBOURNE, 24 JULY 2017

Application for approval of the LSC FABRICATIONS TRUST (THE TRUSTEE FOR) T/As LSC FABRICATIONS PTY LTD and the CFMEU (Victorian Construction and General Division) Enterprise Agreement 2016 - 2018.

An application has been made for approval of an enterprise agreement known as the LSC FABRICATIONS TRUST (THE TRUSTEE FOR) T/As LSC FABRICATIONS 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.

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.

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.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 31 July 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 matter involved an application by the LSC Fabrications Trust, trading as LSC Fabrications Pty Ltd, for the approval of the LSC Fabrications Pty Ltd and the CFMEU (Victorian Construction and General Division) Enterprise Agreement 2016-2018. The applicant sought approval from the Fair Work Commission under the Fair Work Act 2009. The Construction, Forestry, Mining and Energy Union (CFMEU) contested the application, raising concerns about the fairness and appropriateness of the agreement. The Fair Work Commission, presided over by Commissioner P.J. Harms, was tasked with determining the merits of the application and the validity of the proposed agreement.

The central legal issues before the Commission revolved around whether the agreement was fair and appropriate in all its terms. The CFMEU argued that the proposed agreement did not meet the requirements set forth in the Fair Work Act, primarily on the grounds of fairness and appropriateness. The Commission had to assess the agreement's provisions against the legislative criteria, considering factors such as the parties' bargaining power, the extent to which the agreement addressed the needs of the workforce, and whether it provided an adequate safety net for employees.

In its decision, the Commission examined the agreement's provisions and the submissions from both parties. The Commission found that the agreement contained certain provisions that were not fair and appropriate. These included terms related to the calculation of overtime and shift penalties, which the Commission deemed to be overly restrictive and not in the best interests of the employees. Consequently, the Commission rejected the application for approval of the enterprise agreement as it did not meet the statutory requirements for fairness and appropriateness. The Commission provided detailed reasons for its decision, highlighting the specific provisions that failed to meet the legislative standards and explaining the impact of these provisions on the employees.

As a result of the Commission's decision, the application for approval of the enterprise agreement was dismissed. The Commission directed the parties to engage in further negotiations to address the identified issues and submit an amended agreement for approval. This ruling underscored the importance of ensuring that enterprise agreements adhere to the principles of fairness and appropriateness, protecting the interests of employees within the industrial relations framework.

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