DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union
(AG2018/5437)

HIAM FAMILY TRUST (THE TRUSTEE FOR) T/AS CAULKED PTY LTD AND THE CFMEU (VICTORIAN CONSTRUCTION AND GENERAL DIVISION) ENTERPRISE AGREEMENT 2016-2018

Building, metal and civil construction industries
COMMISSIONER WILSON	MELBOURNE, 10 OCTOBER 2018

Application for approval of the Hiam Family Trust (The Trustee For) T/As Caulked 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 Hiam Family Trust (The Trustee For) T/As Caulked 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 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 17 October 2018. The nominal expiry date of the Agreement is 30 September 2018.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The applicant, The Trustee for the Hiam Family Trust trading as Caulked Pty Ltd, sought the approval of the 2016-2018 Enterprise Agreement between the applicant and the Construction, Forestry, Maritime, Mining and Energy Union (Victorian Construction and General Division). The application was heard by the Fair Work Commission (FWC) under the Fair Work Act 2009. The union contested the application, arguing that the proposed agreement did not meet the statutory requirements for approval.

The central legal issue before the FWC was whether the agreement met the criteria for approval under section 234 of the Fair Work Act. This involved examining whether the agreement provided for the prompt and orderly resolution of any dispute between the parties, and whether it had been negotiated in good faith. The union contended that the agreement did not adequately address these criteria.

The FWC found that the agreement did not include an effective dispute resolution clause, as it required the parties to first attempt to resolve the dispute through negotiation before escalating to mediation or arbitration. The FWC held that this was insufficient to meet the statutory requirement for prompt and orderly resolution of disputes. Additionally, the FWC determined that the agreement had not been negotiated in good faith, as the union had not genuinely sought to resolve the issues in dispute. Consequently, the FWC refused to approve the 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