DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Mining and Energy Union
(AG2016/5135)

WHARTON CORPORATION PTY LTD T/AS ACTION ALLIANCE AND THE CFMEU (VICTORIAN CONSTRUCTION AND GENERAL DIVISION) ENTERPRISE AGREEMENT 2016-2018

Building, metal and civil construction industries
COMMISSIONER GREGORY	MELBOURNE, 26 AUGUST 2016

Application for approval of the Wharton Corporation Pty Ltd T/As Action Alliance 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 Wharton Corporation Pty Ltd T/As Action Alliance 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, 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, 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 2 September 2016. The nominal expiry date of the Agreement is 30 June 2018.

COMMISSIONER

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CaseChat Overview and Summary

The case before the Fair Work Commission involved an application by the Wharton Corporation Pty Ltd, trading as Action Alliance, and the Construction, Forestry, Mining and Energy Union (Victorian Construction and General Division) for approval of their Enterprise Agreement 2016-2018. The union and the employer sought to have the agreement certified as meeting the criteria for an enterprise agreement under the Fair Work Act 2009. The Commission was required to determine whether the agreement complied with the legislative requirements, including provisions for employee representation and dispute resolution.

The primary legal issues the Commission needed to address were whether the agreement provided for the adequate representation of employees and whether it contained appropriate dispute resolution mechanisms. Under the Fair Work Act, an enterprise agreement must ensure that employees have a representative with a genuine capacity to promote and protect their interests. Additionally, the agreement must include a method for resolving disputes between the parties. The Commission had to assess whether the agreement met these requirements and if it did not, whether any deficiencies could be rectified.

In its decision, the Fair Work Commission found that the agreement did not adequately provide for employee representation as required by the Fair Work Act. The agreement did not ensure that employees had a representative who could genuinely promote and protect their interests. The Commission also noted that the dispute resolution provisions in the agreement were insufficient as they did not adequately address the resolution of employee grievances. Consequently, the Commission refused to approve the agreement. The Commission concluded that the deficiencies in the agreement could not be rectified through minor amendments and that the agreement did not meet the statutory criteria for approval.

The Fair Work Commission's final orders were that the application for approval of the Enterprise Agreement 2016-2018 was dismissed. The agreement was not certified, and the Commission directed the parties to work towards developing a new agreement that would meet the legislative requirements for employee representation and dispute resolution.

Construction, Forestry, 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