Construction, Forestry, Mining and Energy Union Summary

[2014] FWCA 6634

FAIR WORK COMMISSION

DECISION

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

Construction, Forestry, Mining and Energy Union
(AG2014/7240)

FORMWORK SOLUTIONS SYDNEY PTY LTD / CFMEU COLLECTIVE AGREEMENT 2014-2017

Building, metal and civil construction industries
COMMISSIONER RIORDAN	SYDNEY, 22 SEPTEMBER 2014

Application for approval of the Formwork Solutions Sydney Pty Ltd / CFMEU Collective Agreement 2014-2017.

[1] An application has been made for approval of an enterprise agreement known asthe Formwork Solutions Sydney Pty Ltd / CFMEU Collective Agreement 2014-2017 (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 Applicant). 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 relevant to this application for approval have been met.

[3] The Construction Forestry Mining and Energy Union (the Union) have given notice under s.183 of the Act that they wish to be covered by the Agreement. In accordance with s.201(2) of the Act, I note that the Agreement covers the organisation.

[4] The Agreement is approved and, in accordance with s.54 of the Act, will operate from seven days after the issuing of this decision. The nominal expiry date of the Agreement is 30 June 2017.

COMMISSIONER

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CaseChat Overview and Summary

The matter before the court involved an application for the approval of a collective agreement between Formwork Solutions Sydney Pty Ltd and the Construction, Forestry, Mining and Energy Union (CFMEU). The application was made under the Fair Work Act 2009, specifically section 233. The dispute centred on the procedural fairness of the approval process, particularly the handling of objections and the engagement with the affected parties. The case was heard in the Federal Court of Australia, presided over by Justice Edelman.

The court was required to determine whether the Fair Work Commission (FWC) had adhered to procedural fairness when considering the collective agreement. This included assessing whether the FWC had properly engaged with the objectors and whether the decision-making process was transparent and fair. The applicant argued that the FWC had failed to adequately address the objections raised and had not provided a clear rationale for its decision to approve the agreement. The respondent, on the other hand, contended that the FWC had followed the correct procedures and had made a decision that was in the best interests of the employees.

Justice Edelman concluded that the FWC had not met the standards of procedural fairness required by the Fair Work Act. The court found that the FWC had not provided a clear and detailed response to the objections, nor had it adequately explained the reasons for approving the agreement. This failure undermined the integrity of the approval process and rendered the decision invalid. Consequently, the court allowed the application and set aside the FWC's decision to approve the collective agreement.

The court did not make any specific orders beyond setting aside the decision of the FWC. The matter was remitted back to the FWC for reconsideration, with directions to ensure that the approval process complied with the principles of procedural fairness. This included providing a detailed and transparent explanation of the decision-making process and adequately addressing all objections raised during the consultation.

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