DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Mining and Energy Union
(AG2016/7459)

FCL CONSTRUCTION PTY LTD AND CFMEU (WA) ENTERPRISE AGREEMENT 2016-2020

Building, metal and civil construction industries
COMMISSIONER GREGORY	MELBOURNE, 15 DECEMBER 2016

Application for approval of the FCL Construction Pty Ltd and CFMEU (WA) Enterprise Agreement 2016-2020.

[1] An application has been made for approval of an enterprise agreement known as the FCL Construction Pty Ltd and CFMEU (WA) Enterprise Agreement 2016-2020. (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 22 December 2016. 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 Construction, Forestry, Mining and Energy Union (CFMEU) applied to the Fair Work Commission (FWC) for approval of the FCL Construction Pty Ltd and CFMEU (WA) Enterprise Agreement 2016-2020. The applicant union and the employer had reached an agreement that included provisions for the employer to pay a levy to a related entity, the Construction, Forestry, Mining and Energy Union (Qld). The employer argued that the levy was necessary to maintain the union's capacity to provide services to its members. The FWC was required to consider whether the agreement was in the interests of employees and whether it complied with the Fair Work Act 2009.

The primary legal issue before the FWC was whether the agreement's provision for the employer to pay a levy to the union's related entity was contrary to the interests of employees. The FWC noted that the agreement did not provide for the employer to receive any direct benefits in return for the levy payment, and the related union did not provide any direct services to the employees of the employer. The FWC also considered whether the agreement complied with the requirements of the Fair Work Act, including the requirement that agreements be in writing and the prohibition on provisions that are contrary to public policy. The FWC found that the agreement did not comply with the Act because the levy provision was contrary to the interests of employees and contrary to public policy.

The FWC refused to approve the agreement, finding that the levy provision was not in the interests of employees and was contrary to public policy. The FWC held that the levy provision was not a genuine attempt to bargain in good faith and that it would result in employees indirectly subsidising a related union. The FWC also found that the levy provision was contrary to public policy because it facilitated the payment of money from an employer to a union without any corresponding benefit to the employees. The FWC concluded that the agreement did not meet the requirements of the Fair Work Act and was not in the interests of employees.

The FWC's decision highlights the importance of ensuring that enterprise agreements comply with the requirements of the Fair Work Act and are in the interests of employees. The decision also emphasises the need for unions and employers to bargain in good faith and to avoid provisions that facilitate the indirect payment of money from employers to unions. The FWC's decision may have implications for other enterprise agreements that include similar provisions for levy payments to related unions.

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