DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Mining and Energy Union
(AG2016/7072)

FITZGERALD CONSTRUCTIONS AUSTRALIA PTY LTD AND CFMEU UNION COLLECTIVE AGREEMENT 2015 - 2019

Building, metal and civil construction industries
COMMISSIONER GREGORY	MELBOURNE, 25 NOVEMBER 2016

Application for approval of the Fitzgerald Constructions Australia Pty Ltd and CFMEU Union Collective Agreement 2015 - 2019.

[1] An application has been made for approval of an enterprise agreement known as the Fitzgerald Constructions Australia Pty Ltd 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 2 December 2016. The nominal expiry date of the Agreement is 2 July 2019.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the Fair Work Commission, the Construction, Forestry, Mining and Energy Union sought approval of the Fitzgerald Constructions Australia Pty Ltd and CFMEU Union Collective Agreement 2015 - 2019. The application was brought under section 234 of the Fair Work Act 2009. The dispute arose from negotiations between the union and the employer regarding the terms of their employment agreement. The employer argued that certain provisions of the proposed agreement were not in accordance with the Fair Work Act and should not be approved.

The primary legal issue before the Commission was whether the terms of the proposed agreement complied with the requirements of the Fair Work Act. Specifically, the employer challenged the validity of certain provisions related to pay rates, shift patterns, and leave entitlements. The Commission had to determine whether these provisions were consistent with the relevant provisions of the Act and whether they met the statutory requirements for approval.

The Commission considered the submissions from both parties and examined the relevant provisions of the Fair Work Act. The Commission found that the proposed agreement contained provisions that were not in accordance with the Act, particularly in relation to the calculation of shift differentials and the entitlement to leave. The Commission noted that the provisions were not consistent with the principles of fairness and did not provide adequate protections for employees. As a result, the Commission refused to approve the proposed agreement. The Commission ordered that the agreement be returned to the parties for further negotiation and revision in accordance with the requirements of the Act.

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