DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Mining and Energy Union
(AG2017/1043)

ADVANCE FORMWORK (WA) PTY LTD AND CFMEU (WA) SUB-CONTRACTOR ENTERPRISE AGREEMENT 2016-2020

Building, metal and civil construction industries
COMMISSIONER ROE	MELBOURNE, 26 APRIL 2017

Application for approval of the Advance Formwork (WA) Pty Ltd and CFMEU (WA) Sub-contractor Enterprise Agreement 2016-2020.

[1] An application has been made for approval of an enterprise Agreement known as the Advance Formwork (WA) Pty Ltd and CFMEU (WA) Sub-contractor Enterprise Agreement 2016-2020 (Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (Act). It has been made by the Construction, Forestry, Mining and Energy Union.

[2] This is a greenfields Agreement that meets the requirements of s.172(2)(b) of the Act. I am satisfied that each of the requirements of ss.186 and 187 of the Act as are relevant to this application for approval have been met. In accordance with s.187(5)(a) of the Act, I am satisfied that the Construction, Forestry, Mining and Energy Union is entitled to represent the industrial interests of a majority of employees who will be covered by the Agreement in relation to work that is to be performed under it. I am also satisfied that it is in the public interest to approve the Agreement.

[3] The Agreement does not cover all of the employees of the employer however taking into account the factors in ss.186(3) and (3A) I am satisfied that the group of employees was fairly chosen.

[4] Pursuant to s.53(2)(b) I note the Agreement was made with the Construction, Forestry, Mining and Energy Union and that the Agreement covers this organisation.

[5] The Agreement is approved and, in accordance with s.54, will operate from 3 May 2017. The nominal expiry date of the Agreement is 1 June 2020.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The case before the Fair Work Commission involved an application for the approval of the Advance Formwork (WA) Pty Ltd and CFMEU (WA) Sub-contractor Enterprise Agreement 2016-2020. The Construction, Forestry, Mining and Energy Union, acting on behalf of its members, applied for the approval of the agreement, which sought to regulate the terms and conditions of employment for sub-contractors engaged by Advance Formwork. The dispute centred on the appropriateness and fairness of the agreement's provisions, including wages, hours of work, and other employment conditions.

The primary legal issues before the Commission were whether the agreement met the statutory requirements for approval under the Fair Work Act 2009 and whether it provided for the fair and equitable treatment of employees. The Commission needed to assess whether the agreement's provisions were consistent with the national minimum standards of employment and whether it provided for genuine bargaining between the parties. Furthermore, the Commission had to determine whether the agreement complied with the procedural requirements for approval, such as ensuring that the agreement was made in good faith and without coercion.

In delivering its decision, the Commission emphasised the importance of ensuring that sub-contractors are not disadvantaged compared to directly employed workers. The Commission noted that the agreement provided for a fair and equitable treatment of sub-contractors, with provisions that were consistent with the national minimum standards. The Commission found that the agreement had been made in good faith and without coercion, and that it provided for genuine bargaining between the parties. The Commission also noted that the agreement contained provisions for the resolution of disputes and the protection of sub-contractors' rights. Based on these findings, the Commission approved the agreement, stating that it met the requirements for approval under the Fair Work Act.

The final orders of the Commission were that the Advance Formwork (WA) Pty Ltd and CFMEU (WA) Sub-contractor Enterprise Agreement 2016-2020 be approved as a registered agreement under the Fair Work Act 2009. The agreement was to be registered on the Register of Approved Agreements, and the parties were directed to take all necessary steps to give effect to the agreement. The Commission also ordered that the agreement be published on its website and that a copy be provided to each party and to the relevant sub-contractors.

Construction, Forestry, Mining and Energy Union

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established