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FWC CFMEU v CBI DECISION – NEW ‘ACCESS PERIOD’ REQUIREMENTS

The decision of a Full Bench of the Fair Work Commission (FWC)  in  CFMEU v CBI Constructors [2018] FWCFB 2732 has led to a potentially significant number of enterprise agreement applications that have not yet been approved becoming invalid.

In the decision, the Full Bench has adopted the following interpretation of the ‘access period’ requirements in s.180 of the Fair Work Act 2009:

  • The ‘access period’ must be seven clear calendar days;
  • The employees must be notified of the time and place at which the vote will occur, and the voting method that will be used, before the start of the ‘access period’ (i.e. the calendar day before the ‘access’ period starts or earlier);
  • The vote must not commence until the day after the end of the ‘access period’.

This decision is just one of many that have changed the way that the FWC is assessing enterprise agreements at the approval stage. The approval process has become a ‘minefield’. A relatively large number of applications are being found to be invalid by the Commission.

Of those applications that are not rejected by the FWC or withdrawn by the employer at the suggestion of the FWC, employers are being required to give undertakings in around 75 per cent of cases.

If you would like more information about enterprise agreements, please contact Ai Group’s Workplace Advice Service on 1300 55 66 77.

Alternatively, if you would like advice regarding enterprise agreement strategy, responding to employee and union claims, drafting enterprise agreement, and seeking approval of enterprise agreements by the Fair Work Commission, please contact your local employment, workplace and industrial lawyer in Sydney, Newcastle, Wollongong, Adelaide, Melbourne or Brisbane or email Ai Group Workplace Lawyers at info@aigroupworkplacelawyers.com.au.

Published - 24/09/18

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