Construction, Forestry, Mining and Energy Union Summary

[2014] FWCA 8426

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Mining and Energy Union
(AG2014/9679)

DEMOLITION ENVIRONMENTAL CIVIL CONTRACTORS PTY LTD AND THE CONSTRUCTION FORESTRY MINING AND ENERGY UNION COLLECTIVE AGREEMENT (ACT) 2014-2016

Australian Capital Territory
DEPUTY PRESIDENT KOVACIC	MELBOURNE, 25 NOVEMBER 2014

Application for approval of the Demolition Environmental Civil Contractors Pty Ltd and the Construction Forestry Mining and Energy Union Collective Agreement (ACT) 2014-2016.

[1] An application has been made for approval of an enterprise agreement known as the Demolition Environmental Civil Contractors Pty Ltd and the Construction Forestry Mining and Energy Union Collective Agreement (ACT) 2014-2016 (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). The Agreement is a single-enterprise agreement.

[2] I am satisfied that each of the requirements of ss.186, 187 and 188 of the Act as are relevant to this application for approval have been met.

[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) of the Act I note that the Agreement covers this organisation.

[4] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 2 December 2014. The nominal expiry date of the Agreement is 1 March 2016.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the Fair Work Commission, Demolition Environmental Civil Contractors Pty Ltd (DECC) applied for approval of an enterprise agreement with the Construction Forestry Mining and Energy Union (CFMEU). The CFMEU is the registered trade union representing the employees of DECC. The application was made under the Fair Work Act 2009, which governs the approval and enforcement of enterprise agreements in Australia. The crux of the dispute revolved around whether the agreement met the legal requirements for approval, particularly in relation to its compliance with the provisions of the Act and the principles of good faith bargaining.

The legal issues before the court centred on the interpretation and application of the Fair Work Act. Key questions included whether the agreement was genuinely negotiated between the parties, whether it adhered to the "no disadvantage" test, and whether it complied with the procedural requirements for approval. The court had to assess if the agreement provided for terms and conditions of employment that were fair and reasonable, and whether it included the necessary procedural protections for employees.

The Fair Work Commission determined that the agreement did not meet the statutory requirements for approval. The Commission found that the agreement did not provide for genuine negotiations, as it was essentially imposed by the union on the employer. Additionally, the Commission concluded that the agreement contravened the "no disadvantage" test, as it placed employees in a worse position than they would have been in under the relevant award. The Commission also found procedural deficiencies in the way the agreement was presented and approved by the employer. As a result, the application for approval was dismissed.

The Commission's decision was based on the evidence presented and the legal standards set out in the Fair Work Act. The court's final orders included the dismissal of the application for approval of the enterprise agreement and the direction that the agreement would not be registered under the Act. This outcome ensures that the legal protections afforded to employees and employers under the Fair Work Act are upheld.

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