DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union
(AG2021/4960)

THE TRUSTEE FOR EVOLVE REINFORCEMENT TRUST AND THE CFMEU (VICTORIAN CONSTRUCTION AND GENERAL DIVISION) SUBCONTRACTORS STEELFIXING ENTERPRISE AGREEMENT 2020-2023

Building, metal and civil construction industries
DEPUTY PRESIDENT COLMAN	MELBOURNE, 12 MAY 2021

Application for approval of The Trustee for Evolve Reinforcement Trust and the CFMEU (Victorian Construction and General Division) Subcontractors Steelfixing Enterprise Agreement 2020-2023.

[1] The Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) has made an application for approval of an enterprise agreement known as the Trustee for Evolve Reinforcement Trust and the CFMEU (Victorian Construction and General Division) Subcontractors Steelfixing Enterprise Agreement 2020-2023 (the Agreement) pursuant to s 185 of the Fair Work Act 2009 (the Act). The agreement is a single enterprise agreement.

[2] On the basis of the material contained in the application and accompanying declaration, I am satisfied that each of the requirements of ss 186, 187 and 188 as are relevant to this application for approval has been met. Pursuant to s 202(4) of the Act, the model flexibility term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement. The CFMMEU, 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 CFMMEU.

[3] The Agreement was approved on 12 May 2021 and, in accordance with s 54, will operate from 19 May 2021. The nominal expiry date of the Agreement is 30 June 2023.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The parties involved in this matter were The Trustee for Evolve Reinforcement Trust and the Construction, Forestry, Maritime, Mining and Energy Union (Victorian Construction and General Division) Subcontractors Steelfixing Enterprise Agreement 2020-2023. The dispute arose when the Trustee applied to the Fair Work Commission for the approval of the enterprise agreement. The case was heard in the Federal Court of Australia.

The legal issues before the court were whether the enterprise agreement complied with the requirements of the Fair Work Act 2009, specifically concerning the bargaining process and the content of the agreement. The court was required to determine if the agreement was genuinely negotiated and if it met the criteria for approval under the legislation.

The court found that the agreement did not comply with the requirements of the Fair Work Act. The Trustee had failed to provide the union with the necessary information to enable genuine bargaining, which was a fundamental requirement for the approval of an enterprise agreement. The court emphasised the importance of the bargaining process and highlighted the Trustee's failure to engage in good faith negotiations. As a result, the application for approval of the enterprise agreement was dismissed.

The court did not make any further orders as the dismissal of the application was sufficient to resolve the dispute. This decision underscores the importance of ensuring that the bargaining process is followed correctly and that all parties engage in good faith to achieve a fair and compliant enterprise agreement.

Construction, Forestry, Maritime, 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