Construction, Forestry, Mining and Energy Union v CSR Limited T/A Viridian New World Glass [2015] FWCFB 3889 and [2015] FWCFB 4624

In Construction, Forestry, Mining and Energy Union v CSR Limited T/A Viridian New World Glass [2015] FWCFB 3889 and [2015] FWCFB 4624 a Full Bench of the Fair Work Commission has over turned the approval of two enterprise agreements.

On 19 January 2015 SDP Richards approved two agreements purportedly made by CSR Limited in Cairns and Townsville. Each agreement contained a clause referring to the draft Building and Construction Industry (Fair and Lawful Building Sites) Code 2014 (the “Draft Building Code”). Each of the relevant clauses provided that the agreements were intended to satisfy the Draft Building Code and that any part of the Award, which had been called up in the Agreements, was inconsistent with the Draft Building Code, as varied from time to time, that part of the Award would cease to be part of the Agreements.

The Construction, Forestry, Mining and Energy Union (the Union), appealed the approval decisions on the basis that:

1. those agreements were not sufficiently certain so as to enable an assessment as to whether they passed the BOOT; and
2. the employer could not have complied with the pre approval steps of explaining the likely effect of the Agreements to the employees, where the likely effect of the Draft Building Code, as varied from time to time, was indeterminate.

CSR submitted that the Union was not a person aggrieved by the decision to grant the approval of the agreements, relying on Construction, Forestry, Mining and Energy Union v Collinsville Coal Operations Pty Ltd (Collinsville). The CFMEU argued that Collinsville should be distinguished open the basis that Collinsville was concerned with whether a Union had a right to be heard as opposed to they were a person aggrieved. The Full Bench agreed that the CFMEU was a person aggrieved and had standing to appeal.

The Full Bench went on to hold that the inclusion of references to the Draft Building Code, not yet passed by parliament at the time of the decision, rendered the Agreement so uncertain that a proper assessment as to whether those agreements passed the BOOT could be undertaken. The Full Bench also found that there was insufficient evidence to find that the employer had complied with the pre-approval steps by explaining the likely effect of the agreements to the employees.

The Full Bench decisions are available here and here.

Hall Payne Lawyers has considerable experience in dealing with bargaining and agreement approval matters. If you require any assistance in relation to these matters please do not hesitate to contact Charles Massy on (07) 3017 2400.