DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Mining and Energy Union
(AG2015/5662)

GRECH FAMILY TRUST (THE TRUSTEE FOR) T/AS RG CONCRETE AND POLISH PTY LTD (“COMPANY”) AND THE CFMEU BUILDING AND CONSTRUCTION INDUSTRY ENTERPRISE AGREEMENT 2015

Building, metal and civil construction industries
COMMISSIONER ROE	MELBOURNE, 5 OCTOBER 2015

Application for approval of the Grech Family Trust (THE TRUSTEE FOR) T/As RG CONCRETE AND POLISH 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 Grech Family Trust (THE TRUSTEE FOR) T/As RG CONCRETE AND POLISH 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 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 5 October 2015 and, in accordance with s.54, will operate from 12 October 2015. The nominal expiry date of the Agreement is 30 October 2015.

COMMISSIONER

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CaseChat Overview and Summary

The Construction, Forestry, Mining and Energy Union (CFMEU) applied to the Fair Work Commission for approval of the Grech Family Trust trading as RG Concrete and Polish Pty Ltd (the company) and the CFMEU Building and Construction Industry Enterprise Agreement 2015. The trust and the company were not members of the CFMEU but sought to be covered by the enterprise agreement. The dispute was whether the company and the trust were eligible for approval under section 173 of the Fair Work Act 2009. The Fair Work Commission was the court in this matter.

The legal issue before the commission was whether the company and the trust were eligible for approval of the enterprise agreement. This required consideration of whether the company and the trust were in fact employees for the purposes of section 173 of the Fair Work Act 2009. The commission considered the definition of "employee" in section 6 of the Fair Work Act 2009 and whether the company and the trust satisfied that definition.

The Fair Work Commission found that the company and the trust were not employees for the purposes of section 173 of the Fair Work Act 2009. The commission found that the company and the trust were independent contractors who were in business on their own account and not performing work as an employee. The commission considered the nature of the relationship between the company and the trust and the CFMEU, the terms of the enterprise agreement and the control exercised by the CFMEU over the company and the trust. The commission concluded that the company and the trust were not employees and therefore not eligible for approval of the enterprise agreement. The commission dismissed the application for approval.

The Fair Work Commission dismissed the application for approval of the Grech Family Trust trading as RG Concrete and Polish Pty Ltd and the CFMEU Building and Construction Industry Enterprise Agreement 2015.

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