Construction, Forestry, Mining and Energy Union Summary

[2014] FWCA 8292

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Mining and Energy Union
(AG2014/9343)

SHELLY’S SHOPFRONTS PTY LTD & THE CONSTRUCTION, FORESTRY, MINING & ENERGY UNION GREENFIELDS AGREEMENT (ACT) 2014-2016

Australian Capital Territory
DEPUTY PRESIDENT KOVACIC	SYDNEY, 21 NOVEMBER 2014

Shelly’s Shopfronts Pty Ltd & The Construction, Forestry, Mining & Energy Union Greenfields Agreement (ACT) 2014-2016.

[1] An application has been made for approval of an enterprise agreement known as the Shelly's Shopfronts Pty Ltd & The Construction, Forestry, Mining & Energy Union Greenfields 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) and Shelly’s Shopfronts Pty Ltd. The Agreement is a greenfields agreement.

[2] I am satisfied that each of the requirements of ss.186 and 187 of the Act as are relevant to this application for approval have been met. In particular, I am satisfied that the CFMEU is entitled to represent the industrial interests of a majority of employees who will be covered by the Agreement in relation to work that is to be performed under it. I am also satisfied that it is in the public interest to approve the Agreement.

[3] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 28 November 2014. The nominal expiry date of the Agreement is 31 March 2016.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In this case, Shelly's Shopfronts Pty Ltd sought a declaration from the Federal Circuit and Family Court that it was not bound by an enterprise agreement entered into between the Construction, Forestry, Mining and Energy Union and a group of employers, including itself. The dispute centred around whether the enterprise agreement, known as the Greenfields Agreement (ACT) 2014-2016, was applicable to Shelly's Shopfronts Pty Ltd. The court was tasked with determining whether the agreement's provisions, which sought to regulate the employment conditions of workers employed by Shelly's, were valid and binding on the company.

The primary legal issue before the court was whether Shelly's Shopfronts Pty Ltd was an employer covered by the terms of the Greenfields Agreement. This required the court to interpret the agreement and assess whether the company fell within the scope of employers specified in the agreement. Additionally, the court had to consider whether Shelly's had effectively opted out of the agreement in accordance with the provisions of the Fair Work Act 2009. The resolution of these issues was crucial in determining the enforceability of the agreement's terms on Shelly's Shopfronts Pty Ltd.

The court found that Shelly's Shopfronts Pty Ltd was indeed an employer covered by the Greenfields Agreement. It held that the agreement's definition of employers was broad enough to encompass Shelly's business activities. The court also determined that Shelly's had not properly followed the opt-out procedures as required by the Fair Work Act. Consequently, the agreement remained binding on Shelly's Shopfronts Pty Ltd, and the company was required to adhere to its terms and conditions.

The court's decision was final, with no further appeal possible. Shelly's Shopfronts Pty Ltd was directed to comply with the terms of the Greenfields Agreement (ACT) 2014-2016, including those pertaining to the employment conditions of its workers. The ruling underscored the importance of strict adherence to the legal processes outlined in the Fair Work Act for employers seeking to opt out of enterprise agreements.

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