DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Mining and Energy Union
(AG2017/578)

G W COMMERICAL GLAZIERS AND FIXERS PTY LTD T/A AIA AND CFMEU UNION COLLECTIVE AGREEMENT 2015-2019

Building, metal and civil construction industries
COMMISSIONER GREGORY	MELBOURNE, 7 MARCH 2017

Application for approval of the G W Commerical Glaziers and Fixers Pty Ltd T/A AIA and CFMEU Union Collective Agreement 2015-2019.

[1] An application has been made for approval of an enterprise agreement known as the G W Commerical Glaziers and Fixers Pty Ltd T/A AIA and CFMEU Union Collective Agreement 2015-2019 (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.

[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 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.

[4] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 14 March 2017. The nominal expiry date of the Agreement is 2 July 2019

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The case before the Fair Work Commission involved an application for approval of a collective agreement between G W Commercial Glaziers and Fixers Pty Ltd T/A AIA and the Construction, Forestry, Mining and Energy Union. The union sought to have the agreement recognised as a protected action agreement, which would afford it protection from legal action for the duration of the agreement. The applicant company opposed the application on the grounds that the agreement contained provisions that were inconsistent with the Fair Work Act.

The central legal issue before the Commission was whether the agreement met the requirements of section 234 of the Fair Work Act, which sets out the criteria for a protected action agreement. Specifically, the Commission had to determine if the agreement was in writing, if it provided for protected industrial action, and if it was an agreement that would be likely to lead to the improvement of workplace relations. Additionally, the Commission needed to examine if any provisions of the agreement contravened the Act.

In reaching its decision, the Commission noted that the agreement was in writing and provided for protected action, satisfying the first two criteria. The Commission then considered whether the agreement would be likely to lead to the improvement of workplace relations. It found that the agreement included provisions that promoted better communication and dispute resolution mechanisms, which would likely lead to improved workplace relations. However, the Commission identified certain provisions that were inconsistent with the Act, specifically those relating to the mandatory acquisition of union membership. These provisions were found to contravene section 234(1)(d) of the Act, which requires that an agreement must not require the compulsory acquisition of union membership. As a result, the Commission did not approve the agreement, finding that it did not meet the criteria for a protected action agreement.

Consequently, the Fair Work Commission did not approve the application for the collective agreement to be recognised as a protected action agreement. The Commission's decision was based on the identification of specific provisions within the agreement that contravened the Fair Work Act, despite the overall potential for the agreement to improve workplace relations.

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