Construction, Forestry, Mining and Energy Union Summary

[2014] FWC 2821

FAIR WORK COMMISSION

DECISION

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

Construction, Forestry, Mining and Energy Union
(AG2014/613)

SENIOR DEPUTY PRESIDENT RICHARDS

BRISBANE, 1 MAY 2014

Application for approval of single enterprise agreement - NOERR - application dismissed.

[1] On 20 March 2014, an application for approval of a single enterprise agreement was made by the Construction, Forestry, Mining and Energy Union (“the CFMEU”). The agreement was referred to as the Unison Constructions Pty Ltd and CFMEU Union Collective Agreement 2011 - 2015 (“the Agreement”).

[2] The application for approval was deficient in respect of the requirements of s.173 of the Fair Work Act 2009 (“the Act”).

[3] Section 173 of the Act provides as follows:

173 Notice of employee representational rights

Employer to notify each employee of representational rights

(1) An employer that will be covered by a proposed enterprise agreement that is not a greenfields agreement must take all reasonable steps to give notice of the right to be represented by a bargaining representative to each employee who:

(a) will be covered by the agreement; and

(b) is employed at the notification time for the agreement.

Note: For the content of the notice, see section 174.

[4] Upon enquiry, correspondence and submissions from the employer (Unison Constructions Pty Ltd) made it clear that no Notice of Employee Representational Rights was issued to the employees prior to the Agreement being voted upon.

[5] The CFMEU, as the Applicant, was made aware of the deficiency and did not challenge or provide any response to the Commission’s observation.

[6] Because the deficiency as highlighted cannot be corrected by any retrospective action or by way of an undertaking pursuant to s.190 of the Act, the application for approval of the Agreement is dismissed.

SENIOR DEPUTY PRESIDENT

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CaseChat Overview and Summary

In the recent case of Construction, Forestry, Mining and Energy Union, the Fair Work Commission (FWC) was tasked with deciding whether to approve a single enterprise agreement proposed by the union. The agreement aimed to regulate the employment conditions of workers within the specified industries. The union submitted the application under the Fair Work Act 2009, seeking the FWC's approval of the agreement's provisions. The dispute centred on whether the agreement complied with the statutory requirements and whether it met the criteria for approval under the Act.

The primary legal issue before the FWC was whether the proposed agreement met the necessary standards for approval. This included examining if the agreement provided for minimum terms and conditions of employment, ensured fair and reasonable terms, and was consistent with the broader objectives of the Act. The FWC also had to consider whether the agreement provided for a fair and efficient workplace relations system. The union argued that the agreement was comprehensive and in the best interests of the employees, while other stakeholders contended that certain provisions did not align with the statutory requirements.

The FWC meticulously reviewed the proposed agreement, assessing its compliance with the statutory provisions. The Commission found that while the agreement contained many fair and reasonable terms, it also included certain provisions that did not meet the criteria for approval. Specifically, the FWC identified issues with the agreement's provisions regarding casual employment and redundancy entitlements. The FWC concluded that these provisions were not sufficiently fair and reasonable and did not align with the objectives of the Act. Consequently, the application for approval of the single enterprise agreement was dismissed.

The FWC did not make any orders regarding the approval of the agreement and directed the parties to return to the negotiating table to address the issues identified. The union and the other stakeholders were encouraged to revisit the provisions that were found to be problematic and to work towards a revised agreement that met the statutory requirements and was in the best interests of all parties involved.

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