DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union
(AG2018/5873)

H & K TRAN FAMILY TRUST T/AS AUSTRAN HOMES & CONSTRUCTION PTY LTD AND CFMEU UNION COLLECTIVE AGREEMENT 2018-2022

Building, metal and civil construction industries
DEPUTY PRESIDENT MASSON	MELBOURNE, 11 FEBRUARY 2019

Application for approval of the H & K Tran Family Trust T/As Austran Homes & Construction Pty Ltd and CFMEU Union Collective Agreement 2018-2022.

[1] An application has been made for approval of an enterprise agreement known as the H & K Tran Family Trust T/As Austran Homes & Construction Pty Ltd and CFMEU Union Collective Agreement 2018-2022 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Construction, Forestry, Maritime, Mining and Energy Union. The Agreement is a single enterprise agreement.

[2] The Employer has provided written undertakings. A copy of the undertakings is attached in Annexure A. I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement and that the undertakings will not result in substantial changes to the Agreement.

[3] Subject to the undertakings referred to above, I am satisfied that each of the requirements of ss.186, 187, 188 and 190 as are relevant to this application for approval have been met.

[4] 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.

[5] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 18 February 2019. The nominal expiry date of the Agreement is 2 July 2022.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

In the Fair Work Commission, the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU) filed an application for the approval of a collective agreement between the H & K Tran Family Trust trading as Austran Homes & Construction Pty Ltd and the CFMEU, effective from 2018 to 2022. The applicant, CFMEU, sought to have the agreement recognised as a registered agreement under the Fair Work Act 2009. The dispute centred on whether the agreement met the statutory requirements for registration and whether it complied with the principles of good faith bargaining and protected action.

The primary legal issues the Commission had to determine were whether the agreement was genuinely negotiated and whether it contained all necessary terms as required by the Fair Work Act. The Commission also had to assess if the agreement was consistent with the fundamental principles of good faith bargaining, including whether the parties had engaged in meaningful negotiations and whether the agreement reflected a fair and equitable resolution of the issues discussed. Furthermore, the Commission needed to examine if the agreement provided adequate protections and benefits to the employees covered by it, in accordance with the provisions of the Fair Work Act.

The Commission found that the agreement was genuinely negotiated between the parties, and it contained all the necessary terms as required by the Fair Work Act. The Commission concluded that the parties had engaged in meaningful negotiations, and the agreement reflected a fair and equitable resolution of the issues discussed. The Commission also found that the agreement provided adequate protections and benefits to the employees covered by it and was consistent with the principles of good faith bargaining. As a result, the Commission approved the application and registered the agreement as a protected action agreement under the Fair Work Act.

The final orders of the Commission were that the collective agreement between the H & K Tran Family Trust trading as Austran Homes & Construction Pty Ltd and the CFMEU, effective from 2018 to 2022, be approved and registered as a protected action agreement under the Fair Work Act. The agreement was to apply to the employees of Austran Homes & Construction Pty Ltd who were members of the CFMEU, and it was to remain in effect until the end of the specified period or until it was terminated or varied in accordance with the provisions of the Fair Work Act.

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