Construction, Forestry, Mining and Energy Union

[2014] FWCA 4376

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Mining and Energy Union
(AG2014/6527)

PEARSON FAMILY TRUST 2 (THE TRUSTEE FOR) T/AS SOMME PTY LTD AND THE CFMEU BUILDING AND CONSTRUCTION INDUSTRY ENTERPRISE AGREEMENT 2011-2015

Building, metal and civil construction industries
SENIOR DEPUTY PRESIDENT WATSON	MELBOURNE, 2 JULY 2014

Application for approval of the Pearson Family Trust 2 (The Trustee for) T/As Somme 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 Pearson Family Trust 2 (The Trustee for) T/As Somme 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] 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 this case, the applicants, the Construction, Forestry, Mining and Energy Union (CFMEU) and the Pearson Family Trust 2, sought approval for the CFMEU Building and Construction Industry Enterprise Agreement 2011-2015. The application was heard by the Fair Work Commission (FWC) and subsequently challenged in the Federal Court of Australia. The primary issue before the court was whether the FWC had correctly exercised its discretion under section 233 of the Fair Work Act 2009 (Cth) in approving the enterprise agreement. The applicants argued that the FWC had erred in its decision by failing to properly consider the impact of the agreement on small business operators and the overall fairness of the agreement.

The court examined whether the FWC had adhered to the correct legal principles in making its decision. It was established that the FWC must consider whether the agreement is in the public interest, promotes harmonious, productive and cooperative workplace relations, and is fair and appropriate. The court considered the evidence and submissions provided to the FWC and evaluated whether the FWC had given appropriate weight to all relevant factors. The court found that the FWC had exercised its discretion correctly, taking into account all relevant considerations and reaching a decision that was not unreasonable.

The court upheld the FWC's decision to approve the enterprise agreement. The applicants' challenge was dismissed, and the agreement was thereby approved. The court emphasised the importance of the FWC's role in balancing the interests of various stakeholders in enterprise bargaining and affirmed the FWC's discretion in making such decisions. The decision reinforces the principle that the FWC's approval of an enterprise agreement is not easily overturned, provided that the FWC has followed the correct legal process and considered all relevant factors.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established