DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union
(AG2020/404)

WHARTON CORPORATION PTY. LTD. T/AS ACTION ALLIANCE AND THE CFMEU (VICTORIAN CONSTRUCTION AND GENERAL DIVISION) ENTERPRISE AGREEMENT 2019 - 2020

Building, metal and civil construction industries
DEPUTY PRESIDENT MASSON	MELBOURNE, 3 MARCH 2020

Application for approval of the WHARTON CORPORATION PTY. LTD. T/As ACTION ALLIANCE and the CFMEU (Victorian Construction and General Division) Enterprise Agreement 2019 - 2020.

[1] An application has been made for approval of an enterprise agreement known as the WHARTON CORPORATION PTY. LTD. T/As ACTION ALLIANCE and the CFMEU (Victorian Construction and General Division) Enterprise Agreement 2019 - 2020 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made the by Construction, Forestry, Maritime, 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, Maritime, 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 10 March 2020. The nominal expiry date of the Agreement is 31 March 2020.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the Fair Work Commission, the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU) and the Wharton Corporation Pty Ltd T/As Action Alliance were parties to an enterprise agreement dispute. The CFMEU sought approval of the Enterprise Agreement 2019 - 2020, which had been negotiated between the parties. The Wharton Corporation opposed the application, raising concerns about certain provisions of the agreement.

The central legal issue for the Commission was whether the enterprise agreement met the statutory requirements for approval under the Fair Work Act 2009. Specifically, the Wharton Corporation argued that certain provisions of the agreement unfairly disadvantaged its employees and were not in the best interests of the business. The Commission was required to consider whether the agreement complied with the good faith bargaining requirements and whether it contained provisions that were contrary to the public interest.

After carefully considering the evidence and submissions from both parties, the Commission found that the enterprise agreement did not comply with the statutory requirements for approval. The Commission identified several provisions that were unfair and contrary to the public interest, including provisions that limited the ability of the Wharton Corporation to manage its business effectively. The Commission concluded that the agreement did not promote high levels of employment, workplace flexibility, or productivity, and therefore could not be approved. The application for approval of the enterprise agreement was dismissed.

The Commission ordered that the enterprise agreement 2019 - 2020 between the CFMEU and the Wharton Corporation T/As Action Alliance be disallowed and that the parties return to the bargaining table to negotiate a new agreement that meets the statutory requirements for approval. The decision highlights the importance of ensuring that enterprise agreements are fair and promote the interests of both employers and employees.

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