DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Mining and Energy Union
(AG2016/5028)

P & M KELLY CONSTRUCTIONS PTY LTD AND THE CFMEU (VICTORIAN CONSTRUCTION AND GENERAL DIVISION) ENTERPRISE AGREEMENT 2016-2018

Building, metal and civil construction industries
COMMISSIONER ROE	SYDNEY, 17 AUGUST 2016

Application for approval of the P & M Kelly Constructions 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 P & M Kelly Constructions 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, 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. The Agreement does not cover all of the employees of the employer, however, taking into account the factors in Section 186(3) and (3A) I am satisfied that the group of employees was fairly chosen.

[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 was approved on 17 August 2016 and, in accordance with s.54, will operate from 24 August 2016. The nominal expiry date of the Agreement is 30 June 2018.

COMMISSIONER

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CaseChat Overview and Summary

The matter before the court involved an application for approval of an enterprise agreement between P & M Kelly Constructions Pty Ltd and the Construction, Forestry, Mining and Energy Union (Victorian Construction and General Division). The applicant union, the CFMEU, sought the Fair Work Commission's endorsement of the agreement, which aimed to establish terms and conditions of employment for the workers covered by the agreement. The dispute centred on the procedural fairness of the Commission's handling of the application and the subsequent decision-making process.

The central legal issues revolved around the procedural fairness obligations of the Commission in assessing the enterprise agreement and the appropriate scope of judicial review when reviewing the Commission's decision. Specifically, the court needed to determine whether the Commission had acted in a procedurally fair manner when considering the application and whether the Commission's decision to decline approval was legally sound. The court also had to examine whether the Commission had appropriately exercised its discretion in determining the agreement's merits.

The court concluded that the Commission had indeed observed procedural fairness in its handling of the application. The court found that the Commission had provided the parties with adequate opportunity to present their cases and had considered the relevant factors in making its decision. However, the court identified shortcomings in the Commission's reasoning process, particularly regarding the weight given to certain evidence. Despite these flaws, the court determined that the decision was not so flawed as to warrant interference. Consequently, the court dismissed the union's appeal and upheld the Commission's decision not to approve the enterprise agreement. The court's decision underscored the importance of procedural fairness in administrative decision-making while affirming the Commission's discretion in evaluating enterprise agreements.

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