DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Mining and Energy Union
(AG2016/4968)

JOHN SWEENEY FAMILY TRUST T/AS J & M SWEENEY PTY LTD AND THE CFMEU (VICTORIAN CONSTRUCTION AND GENERAL DIVISION) ENTERPRISE AGREEMENT 2016-2018

Building, metal and civil construction industries
COMMISSIONER ROE	MELBOURNE, 12 AUGUST 2016

Application for approval of the John Sweeney Family Trust T/As J & M Sweeney 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 John Sweeney Family Trust T/As J & M Sweeney 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 12 August 2016 and, in accordance with s.54, will operate from 19 August 2016. The nominal expiry date of the Agreement is 30 June 2018.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the Fair Work Commission, the Construction, Forestry, Mining and Energy Union (CFMEU) and the John Sweeney Family Trust trading as J & M Sweeney Pty Ltd applied for the approval of an enterprise agreement. The agreement in question was the CFMEU (Victorian Construction and General Division) Enterprise Agreement 2016-2018. The dispute centred on the procedural fairness of the agreement and its compliance with the Fair Work Act 2009. The court was tasked with determining whether the agreement was genuinely negotiated, and if it met the criteria for being registered as a lawful and binding enterprise agreement.

The primary legal issues before the court involved scrutinising the negotiation process of the agreement and verifying its adherence to the statutory requirements. The court had to assess whether the agreement was genuinely negotiated between the parties, and whether it complied with the procedural fairness and good faith obligations stipulated in the Fair Work Act. Additionally, the court needed to consider whether the agreement met the substantive fairness test, ensuring it was not excessively harsh, inequitable, or unreasonable.

After a comprehensive review of the negotiation process and the contents of the agreement, the court found that the agreement was genuinely negotiated and complied with the statutory requirements. The court noted that the negotiation process was fair, and the agreement met all the criteria for registration under the Fair Work Act. The court was satisfied that the agreement was not excessively harsh, inequitable, or unreasonable, and therefore, it met the substantive fairness test.

Consequently, the court approved the CFMEU (Victorian Construction and General Division) Enterprise Agreement 2016-2018. The agreement was registered, and it became a lawful and binding enterprise agreement between the John Sweeney Family Trust and the CFMEU. The court's decision provided clarity and certainty to the parties involved and upheld the principles of procedural and substantive fairness in the context of 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