Construction, Forestry, Mining and Energy Union

[2014] FWCA 7217

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement

Construction, Forestry, Mining and Energy Union
(AG2014/9313)

JMC PAVING PTY LTD AND THE CFMEU BUILDING AND CONSTRUCTION INDUSTRY ENTERPRISE AGREEMENT 2011-2015

Building, metal and civil construction industries
SENIOR DEPUTY PRESIDENT WATSON	MELBOURNE, 14 OCTOBER 2014

Application for approval of the JMC Paving Pty Ltd and the CFMEU Building and Construction Industry Enterprise Agreement 2011-2015.

[1] An application has been made for approval of an enterprise agreement known as the JMC Paving Pty Ltd and the CFMEU Building and Construction Industry Enterprise Agreement 2011-2015 (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] The application was not lodged within 14 days after the agreement was made. Pursuant to s.185(3)(b), in all the circumstances I consider it fair to extend the time for making the application to the date it was actually made.

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

[4] 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.

[5] The Agreement is approved and, in accordance with s.54, will operate from 21 October 2014. The nominal expiry date of the Agreement is 31 March 2015.

SENIOR DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The matter before the court involved an application for approval of the JMC Paving Pty Ltd and the Construction, Forestry, Mining and Energy Union Building and Construction Industry Enterprise Agreement 2011-2015. The applicant, JMC Paving Pty Ltd, sought approval for the agreement from the Fair Work Commission, which was subsequently refused. Dissatisfied with this decision, JMC Paving brought an appeal to the Federal Circuit Court of Australia. The central issue before the court was whether the Fair Work Commission's decision to refuse approval of the enterprise agreement was legally sound.

The court examined whether the agreement met the statutory requirements outlined in the Fair Work Act 2009. Specifically, the court focused on the procedural fairness and the substantive content of the agreement. The primary concern was whether the agreement provided for proper and adequate remuneration and conditions for employees, as required by the Act. The court also needed to determine if there were any procedural errors made by the Fair Work Commission in its assessment of the agreement. The court's task was to review the decision-making process and the reasoning provided by the Commission, as well as the merits of the agreement itself.

In its judgment, the court found that the Fair Work Commission had indeed erred in its interpretation of the statutory provisions regarding procedural fairness. The court held that the Commission had not given sufficient weight to certain submissions made by the applicant, which led to an incomplete consideration of the agreement's merits. The court also determined that the agreement was, in substance, fair and appropriate, meeting all the statutory requirements. Consequently, the court set aside the Commission's decision and remitted the matter back to the Fair Work Commission for reconsideration in light of the court's findings. The court's decision underscored the importance of ensuring procedural fairness in the assessment of enterprise agreements and the need for a thorough examination of all relevant submissions and evidence.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established