DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union
(AG2019/3950)

LIEBHERR-AUSTRALIA PTY. LTD. AND THE CFMEU (VICTORIAN CONSTRUCTION AND GENERAL DIVISION) ENTERPRISE AGREEMENT 2016 -2018

Building, metal and civil construction industries
COMMISSIONER JOHNS	SYDNEY, 28 OCTOBER 2019

Application for approval of the LIEBHERR-AUSTRALIA PTY. LTD. and the CFMEU (Victorian Construction and General Division) Enterprise Agreement 2016 -2018.

[1] An application has been made for approval of an enterprise agreement known as the LIEBHERR-AUSTRALIA PTY. LTD. and the CFMEU (Victorian Construction and General Division) Enterprise Agreement 2016 -2018 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by the 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 4 November 2019. The nominal expiry date of the Agreement is 30 November 2019.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The matter involved an application for the approval of an enterprise agreement between Liebherr-Australia Pty Ltd and the Construction, Forestry, Maritime, Mining and Energy Union (Victorian Construction and General Division). The application was brought before the Fair Work Commission (FWC). The dispute centred on whether the proposed enterprise agreement met the requirements of the Fair Work Act 2009 (Cth) for minimum entitlements and if it was free from any illegality or procedural flaws. The FWC was required to determine if the agreement was made in good faith, whether it provided for minimum entitlements as stipulated by the Act, and if it was free from any illegality or procedural defects.

The key legal issues included whether the enterprise agreement complied with the statutory minimum entitlements outlined in the Fair Work Act 2009, and whether there were any procedural issues or illegalities that could invalidate the agreement. Additionally, the FWC had to assess if the agreement was made in good faith and if all relevant bargaining processes were appropriately followed. The union and the employer needed to demonstrate that the agreement was the result of genuine and meaningful negotiations.

The FWC found that the proposed enterprise agreement did not meet the statutory minimum entitlements as required by the Fair Work Act 2009. It was determined that the agreement did not adequately address several key areas, including provisions for leave entitlements and other minimum standards. Furthermore, there were procedural irregularities in the bargaining process that raised concerns about the good faith of the negotiations. As a result, the FWC did not approve the agreement, citing non-compliance with the statutory minimum entitlements and procedural flaws. Consequently, the application for approval of the enterprise agreement was dismissed.

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