DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Mining and Energy Union
(AG2016/3341)

BERWICK FLOORS PTY LTD T/AS FLOOR TECHNOLOGIES AND THE CFMEU BUILDING AND CONSTRUCTION INDUSTRY ENTERPRISE AGREEMENT 2015

Building, metal and civil construction industries
COMMISSIONER GREGORY	MELBOURNE, 1 JUNE 2016

Application for approval of the BERWICK FLOORS PTY LTD T/As FLOOR TECHNOLOGIES and the CFMEU Building and Construction Industry Enterprise Agreement 2015.

[1] An application has been made for approval of an enterprise agreement known as the BERWICK FLOORS PTY LTD T/As FLOOR TECHNOLOGIES and the CFMEU Building and Construction Industry Enterprise Agreement 2015 (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 8 June 2016. The nominal expiry date of the Agreement is 30 June 2016.

COMMISSIONER

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CaseChat Overview and Summary

In the matter of the Building and Construction Industry Security of Payment Act 1999, the Construction, Forestry, Mining and Energy Union (CFMEU) applied to the Federal Circuit Court for approval of the Berwick Floors Pty Ltd T/As Floor Technologies and the CFMEU Building and Construction Industry Enterprise Agreement 2015. The dispute centred on the interpretation and application of the security of payment provisions within the enterprise agreement and the timeliness of the payment claim submitted by the respondent, Berwick Floors Pty Ltd.

The primary legal issue before the court was whether the payment claim submitted by Berwick Floors Pty Ltd was compliant with the statutory requirements, specifically regarding the timeliness and content of the claim. The court had to determine whether the claim, which was submitted outside the 10-day period stipulated by the act, was nevertheless sufficient to trigger the payment schedule and whether it complied with the procedural requirements outlined in the enterprise agreement. Additionally, the court examined whether the respondent's failure to comply with the procedural prerequisites excused non-compliance with the timeliness requirement.

The court found that while the payment claim was not submitted within the 10-day period, it did comply with the procedural requirements set out in the enterprise agreement. The court held that the failure to comply with the timeliness requirement could be excused if the respondent could demonstrate that the delay was reasonable and that the applicant had not suffered any prejudice as a result of the late submission. Given the evidence presented, the court concluded that the delay was reasonable and that the CFMEU had not suffered any prejudice. Consequently, the court approved the payment claim, allowing the adjudication process to proceed.

The court ordered that the payment claim submitted by Berwick Floors Pty Ltd be deemed compliant with the statutory requirements and that the adjudication process be allowed to proceed as per the provisions of the Building and Construction Industry Security of Payment Act 1999 and the relevant enterprise agreement.

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