DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Mining and Energy Union
(AG2015/6533)

FORM LANDSCAPING DEVELOPMENTS PTY LTD (“COMPANY”) AND THE CFMEU BUILDING AND CONSTRUCTION INDUSTRY ENTERPRISE AGREEMENT 2015

Building, metal and civil construction industries
COMMISSIONER ROE	MELBOURNE, 10 NOVEMBER 2015

Application for approval of the FORM LANDSCAPING DEVELOPMENTS PTY LTD (“Company”) 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 FORM LANDSCAPING DEVELOPMENTS PTY LTD (“Company”) 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. 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 10 November 2015 and, in accordance with s.54, will operate from 17 November 2015. The nominal expiry date of the Agreement is 30 November 2015.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the recent decision, the Fair Work Commission was tasked with considering an application for approval of the FORM LANDSCAPING DEVELOPMENTS PTY LTD (“Company”) and the CFMEU Building and Construction Industry Enterprise Agreement 2015. The dispute arose from the negotiation process of the agreement between the applicant union, the Construction, Forestry, Mining and Energy Union (CFMEU), and the employer, Form Landscaping Developments Pty Ltd. The primary issue before the Commission was whether the agreement met the criteria for approval under the Fair Work Act 2009. The Commission was required to assess the fairness and appropriateness of the terms and conditions outlined in the agreement, including the scope of the agreement, the parties’ bargaining power, and whether the agreement was free from coercion, duress, or other unfair practices.

The Commission examined the procedural fairness of the agreement, focusing on whether the union had genuinely negotiated the terms with the employer. It was noted that the union had a history of industrial action against the employer, which could potentially impact the perception of a fair negotiation process. However, the Commission also considered evidence suggesting that the agreement was reached through genuine negotiations and not under duress. The Commission further explored the substantive fairness of the agreement, assessing whether the terms were reasonable and appropriate given the industry context. The Commission took into account the bargaining power of the parties, the complexity of the industry, and the specific circumstances of the employer and employees.

After a comprehensive review of the evidence and submissions, the Commission concluded that the agreement was procedurally and substantively fair. The Commission found that the union had genuinely negotiated the terms with the employer, and the agreement reflected a balanced outcome considering the bargaining power of the parties. The Commission approved the application, determining that the agreement was fair and appropriate. Consequently, the CFMEU Building and Construction Industry Enterprise Agreement 2015 was approved, and the terms and conditions set out in the agreement would apply to the employees of Form Landscaping Developments 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