Construction, Forestry, Mining and Energy Union Summary

[2016] FWCA 487

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Construction, Forestry, Mining and Energy Union

(AG2015/7773)

WEKAN CONSTRUCTIONS PTY LTD AND THE CFMEU BUILDING

AND CONSTRUCTION INDUSTRY ENTERPRISE AGREEMENT 2015

Building, metal and civil construction industries

COMMISSIONER ROE

MELBOURNE, 25 JANUARY 2016

Application for approval of the Wekan Constructions Pty Ltd 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

Wekan Constructions Pty Ltd 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. 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.
[2016] FWCA 487

[4] The Agreement was approved on 25 January 2016 and, in accordance with s.54, will

operate from 1 February 2016. The nominal expiry date of the Agreement is 31 December

2015.

COMMISSIONER

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CaseChat Overview and Summary

The Fair Work Commission heard an application for the approval of the Wekan Constructions Pty Ltd and the CFMEU Building and Construction Industry Enterprise Agreement 2015. The application was made by the Construction, Forestry, Mining and Energy Union under Section 185 of the Fair Work Act 2009. The Agreement in question is a single enterprise agreement which was proposed to cover employees in the building, metal, and civil construction industries. The Commission was required to determine whether the Agreement met the requirements for approval under Sections 186, 187, and 188 of the Fair Work Act.

The primary legal issues the Commission had to address were whether the Agreement was fairly chosen and whether it complied with the statutory requirements for approval. The Agreement did not cover all employees of the employer, which raised questions about whether the group of employees selected for the Agreement was fairly chosen. The Commission also had to consider whether the Construction, Forestry, Mining and Energy Union, as a bargaining representative, had validly sought to have the Agreement cover it and whether the Agreement was appropriately structured to cover the relevant organisation.

The Commission determined that the requirements of Sections 186, 187, and 188 of the Fair Work Act had been met. Specifically, the Commission was satisfied that the group of employees was fairly chosen, taking into account the factors outlined in Section 186(3) and (3A). The Commission further noted that the Agreement was validly sought to cover the organisation by the Construction, Forestry, Mining and Energy Union, in compliance with Sections 183 and 201(2) of the Act. As a result, the Agreement was approved and will operate from 1 February 2016, with a nominal expiry date of 31 December 2015.

Construction, Forestry, Mining and Energy Union

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established