Construction, Forestry, Mining and Energy Union

[2016] FWCA 1198

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Construction, Forestry, Mining and Energy Union

(AG2016/163)

DARK HORSE SCAFFOLDING PTY LTD AND CFMEU UNION

COLLECTIVE AGREEMENT 2015 - 2019

Building, metal and civil construction industries

COMMISSIONER ROE

MELBOURNE, 25 FEBRUARY 2016

Application for approval of the Dark Horse Scaffolding Pty Ltd and CFMEU Union

Collective Agreement 2015 - 2019.

[1] An application has been made for approval of an enterprise Agreement known as the

Dark Horse Scaffolding Pty Ltd and CFMEU Union Collective Agreement 2015 - 2019

(Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (Act). It

has been made by the Construction, Forestry, Mining and Energy Union (CFMEU).

[2] This is a greenfields Agreement that meets the requirements of s.172(2)(b) of the Act.

I am satisfied that each of the requirements of ss.186 and 187 of the Act as are relevant to this

application for approval have been met. In accordance with s.187(5)(a) of the Act, I am

satisfied that the CFMEU is entitled to represent the industrial interests of a majority of

employees who will be covered by the Agreement in relation to work that is to be performed

under it. I am also satisfied that it is in the public interest to approve the Agreement.

[3] The Agreement does not cover all of the employees of the employer however taking

into account the factors in ss.186(3) and (3A) I am satisfied that the group of employees was

fairly chosen.

[4] Pursuant to s.53(2)(b) I note the Agreement was made with the CFMEU and that the

Agreement covers this organisation.
[2016] FWCA 1198

[5] The Agreement is approved and, in accordance with s.54, will operate from 3 March

2016. The nominal expiry date of the Agreement is 2 July 2019.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Fair Work Commission was asked to approve an enterprise agreement between Dark Horse Scaffolding Pty Ltd and the Construction, Forestry, Mining and Energy Union (CFMEU). The agreement, which was proposed by the CFMEU, covered employees in the building, metal, and civil construction industries. The application for approval was made under section 185 of the Fair Work Act 2009.

The primary legal issues the court had to address were whether the agreement met the criteria for approval as outlined in sections 186 and 187 of the Act. These sections require that the agreement meets certain conditions, such as representing the industrial interests of a majority of the employees it covers, and that it is in the public interest. Additionally, the court had to consider whether the group of employees covered by the agreement was fairly chosen.

The court found that the agreement met all the necessary criteria. It determined that the CFMEU was entitled to represent the industrial interests of the majority of the employees covered by the agreement. The court was also satisfied that it was in the public interest to approve the agreement. Furthermore, despite the agreement not covering all employees of the employer, the court concluded that the group of employees covered was fairly chosen, taking into account the relevant factors.

The court approved the agreement, which will be effective from 3 March 2016 until its nominal expiry date of 2 July 2019. The approval was made in accordance with section 54 of the Fair Work Act 2009.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established