Construction, Forestry, Mining and Energy Union

[2016] FWCA 64

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Construction, Forestry, Mining and Energy Union

(AG2015/7710)

SEM WINDOW PTY LTD AND THE CFMEU BUILDING AND

CONSTRUCTION INDUSTRY ENTERPRISE AGREEMENT 2015

Building, metal and civil construction industries

COMMISSIONER ROE

MELBOURNE, 6 JANUARY 2016

Application for approval of the SEM WINDOW 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

SEM WINDOW 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 the Construction, Forestry, Mining and Energy

Union (CFMEU). 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 CFMEU 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 64

[4] The Agreement was approved on 6 January 2016 and, in accordance with s.54, will

operate from 13 January 2016. The nominal expiry date of the Agreement is 31 December

2015.

COMMISSIONER

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CaseChat Overview and Summary

The case concerns an application for the approval of the SEM WINDOW PTY LTD and the CFMEU Building and Construction Industry Enterprise Agreement 2015, which was submitted under section 185 of the Fair Work Act 2009. The application was made by the Construction, Forestry, Mining and Energy Union (CFMEU). The Agreement in question is a single enterprise agreement covering employees within the building, metal, and civil construction industries. The CFMEU, as a bargaining representative, has indicated its intention for the Agreement to cover its members, as stipulated in section 183 of the Act.

The primary legal issues before the court were whether the requirements of sections 186, 187, and 188 of the Act had been met in relation to the approval of the enterprise agreement. Specifically, the court needed to determine if the agreement had been fairly chosen, and if the relevant factors under section 186(3) and (3A) had been appropriately considered. Furthermore, the court needed to confirm that the Agreement was indeed intended to cover the organisation, as required by section 201(2).

In its decision, the court found that the application met all the necessary requirements for the approval of the enterprise agreement. The court was satisfied that the group of employees included in the Agreement was fairly chosen, despite the Agreement not covering all employees of the employer. The factors outlined in section 186(3) and (3A) of the Act were also appropriately considered. Additionally, the court confirmed that the Agreement was intended to cover the organisation, as intended by the CFMEU. Consequently, the Agreement was approved on 6 January 2016 and will operate from 13 January 2016, with a nominal expiry date of 31 December 2015.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established