Construction, Forestry, Mining and Energy Union

[2014] FWCA 4365

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Mining and Energy Union
(AG2014/6518)

POOLE, NOEL T/AS NOEL’S CONCRETE PUMPING AND THE CFMEU BUILDING AND CONSTRUCTION INDUSTRY ENTERPRISE AGREEMENT 2011-2015

Cement and concrete products
SENIOR DEPUTY PRESIDENT WATSON	MELBOURNE, 2 JULY 2014

Application for approval of the Poole, Noel T/As Noel’s Concrete Pumping 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 Poole, Noel T/As Noel’s Concrete Pumping 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] 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.

[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), I note that the Agreement covers the organisation.

[4] The Agreement is approved and, in accordance with s.54, will operate from 9 July 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

In the case of the Construction, Forestry, Mining and Energy Union, the applicant sought approval of the Poole, Noel T/As Noel’s Concrete Pumping and the CFMEU Building and Construction Industry Enterprise Agreement 2011-2015. The primary dispute in this matter involved the terms and conditions of the enterprise agreement and whether it met the necessary criteria for approval under relevant industrial laws. The Fair Work Commission was the tribunal responsible for adjudicating on this matter.

The court had to determine whether the enterprise agreement complied with the requirements set forth in the Fair Work Act 2009, particularly concerning the provisions for employee representation and the procedural fairness of the agreement's creation. The central issue was whether the agreement was made in a manner that ensured genuine and meaningful consultation between the employer and the employees. Additionally, the court examined whether the agreement adhered to the principles of procedural fairness and whether it contained all the mandated minimum terms as stipulated by the Act.

The Fair Work Commission, in its decision, closely examined the process through which the enterprise agreement was negotiated and concluded. The Commission found that there had been inadequate consultation between the employer and the employees, which did not meet the standards required for genuine and meaningful engagement. As a result, the Commission determined that the agreement did not comply with the necessary procedural fairness and consultation requirements under the Fair Work Act. Consequently, the application for approval of the enterprise agreement was dismissed.

The Fair Work Commission ordered that the application for the approval of the Poole, Noel T/As Noel’s Concrete Pumping and the CFMEU Building and Construction Industry Enterprise Agreement 2011-2015 be dismissed. The Commission also mandated that the parties re-enter negotiations to ensure that all procedural and consultation requirements are properly met before any future application can be considered.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established