DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Mining and Energy Union
(AG2016/7389)

CARDS (VIC) PTY LTD AND THE CFMEU (VICTORIAN CONSTRUCTION AND GENERAL DIVISION) ENTERPRISE AGREEMENT 2016-2018

Building, metal and civil construction industries
COMMISSIONER GREGORY	MELBOURNE, 8 DECEMBER 2016

Application for approval of the Cards (Vic) Pty Ltd and the CFMEU (Victorian Construction and General Division) Enterprise Agreement 2016-2018.

[1] An application has been made for approval of an enterprise agreement known as the Cards (Vic) 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.

[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 15 December 2016. 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 applicant, Cards (Vic) Pty Ltd, sought approval of an enterprise agreement with the Construction, Forestry, Mining and Energy Union (CFMEU), specifically the Victorian Construction and General Division, for the period 2016-2018. The matter was heard by the Fair Work Commission. The primary dispute centred around the union's request for a union-only clause, which would have restricted the agreement's application to union members only. The employer opposed this clause, arguing it was inconsistent with the Fair Work Act's principle of avoiding restrictive practices.

The legal issues before the Commission were whether the union-only clause was fair and reasonable and whether it complied with the statutory requirement that agreements be free from restrictive practices unless an exemption applied. The Commission had to assess the balance between the parties' bargaining power, the impact of the clause on non-union employees, and whether the clause was necessary to achieve the agreement's objectives. The Commission considered the arguments presented by both parties, including the employer's assertion that the clause would undermine the agreement's purpose of providing a fair and efficient workplace and the union's argument that it was necessary to protect its members' rights.

The Commission found that the union-only clause was not fair and reasonable. It noted the employer's stronger bargaining position and the potential for the clause to unfairly exclude non-union employees. The Commission concluded that the clause did not comply with the statutory requirement to avoid restrictive practices and would not achieve the agreement's objectives in a fair and efficient manner. As a result, the Commission refused to approve the enterprise agreement as it contained the union-only clause. The decision emphasised the importance of maintaining a balance between the rights of union and non-union employees and ensuring that enterprise agreements do not unfairly restrict access to employment or working conditions.

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