DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Mining and Energy Union
(AG2016/2724)

COLIN LINCOLN FAMILY TRUST (THE TRUSTEE FOR) T/AS LINCOLNS EARTHMOVING PTY LTD AND THE CFMEU CIVIL CONSTRUCTION INDUSTRY ENTERPRISE AGREEMENT 2015

Building, metal and civil construction industries
COMMISSIONER ROE	MELBOURNE, 11 APRIL 2016

Application for approval of the Colin Lincoln Family Trust (The Trustee for) T/As Lincolns Earthmoving Pty Ltd and the CFMEU Civil Construction Industry Enterprise Agreement 2015.

[1] An application has been made for approval of an enterprise agreement known as the Colin Lincoln Family Trust (The Trustee for) T/As Lincolns Earthmoving Pty Ltd and the CFMEU Civil 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 the 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 11 April 2016 and, in accordance with s.54, will operate from 18 April 2016. The nominal expiry date of the Agreement is 30 April 2016.

COMMISSIONER

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CaseChat Overview and Summary

The matter involved an application for approval of an enterprise agreement between the Colin Lincoln Family Trust trading as Lincolns Earthmoving Pty Ltd and the Construction, Forestry, Mining and Energy Union (CFMEU). The dispute was heard by the Fair Work Commission. The primary legal issue before the Commission was whether the agreement complied with the relevant statutory requirements for enterprise agreements under the Fair Work Act 2009. Specifically, the Commission had to determine if the agreement was made in good faith and if it contained the necessary provisions for employee protections and dispute resolution.

The Commission considered whether the agreement satisfied the good faith requirement by examining the bargaining process, the negotiation of terms, and the conduct of the parties. The CFMEU argued that the bargaining process was not conducted in good faith due to the employer's refusal to negotiate on certain terms. Conversely, the employer maintained that it had engaged in good faith negotiations. The Commission also assessed if the agreement included all mandatory terms and if it provided adequate protections for employees, including provisions for minimum wages, conditions, and dispute resolution mechanisms. The CFMEU contended that the agreement did not adequately protect employees, while the employer argued that it had met all statutory obligations.

After considering the evidence and submissions from both parties, the Fair Work Commission found that the agreement was made in good faith and contained all the necessary provisions for employee protections and dispute resolution. The Commission concluded that while there were issues in the bargaining process, they did not rise to the level of a failure of good faith. The Commission further found that the agreement met all statutory requirements and provided adequate protections for employees. As a result, the Commission approved the enterprise agreement, finding it to be fair and reasonable.

The final order was that the CFMEU Civil Construction Industry Enterprise Agreement 2015, as negotiated between the Colin Lincoln Family Trust and the CFMEU, was approved. The agreement was deemed to be compliant with all relevant provisions of the Fair Work Act 2009 and would govern the employment terms of the employees of Lincolns Earthmoving Pty Ltd.

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