Construction, Forestry, Mining and Energy Union Summary

[2014] FWCA 2565

FAIR WORK COMMISSION

DECISION

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

Construction, Forestry, Mining and Energy Union
(AG2014/5636)

EMERALD COMMERCIAL PTY LTD T/AS EMERALD COMMERCIAL SERVICES AND THE CFMEU BUILDING AND CONSTRUCTION INDUSTRY ENTERPRISE AGREEMENT 2011-2015

Building, metal and civil construction industries
SENIOR DEPUTY PRESIDENT WATSON	MELBOURNE, 16 APRIL 2014

Application for approval of the Emerald Commercial Pty Ltd T/As Emerald Commercial Services 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 Emerald Commercial Pty Ltd T/As Emerald Commercial Services 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 23 April 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 Fair Work Commission, the Construction, Forestry, Mining and Energy Union (CFMEU) applied for the approval of the Emerald Commercial Pty Ltd T/As Emerald Commercial Services and the CFMEU Building and Construction Industry Enterprise Agreement 2011-2015. The applicant union claimed the agreement was made in good faith, and was a simple, flexible, and fair agreement. Emerald Commercial opposed the application, arguing that the agreement contained provisions that were unreasonable and not made in good faith. The primary dispute centred on the interpretation and application of specific provisions within the enterprise agreement and whether these provisions were in compliance with relevant labour laws.

The key legal issues before the court included whether the provisions of the agreement were made in good faith, were simple, flexible, and fair, and if they complied with statutory requirements. The court had to assess the provisions in light of the criteria established under the Fair Work Act 2009. This involved examining the negotiation process, the content of the agreement, and whether the provisions could be considered reasonable in the circumstances. The court also needed to determine if there was sufficient evidence to support the union's claims regarding the agreement's nature and the process through which it was developed.

The Fair Work Commission found that the negotiation process was conducted in good faith, and the provisions of the agreement were simple, flexible, and fair. The court emphasised that the agreement was the result of genuine bargaining between the parties, and the provisions were reasonable and necessary to achieve a balance between the interests of the employer and the employees. The Commission concluded that the provisions met the statutory requirements and approved the enterprise agreement. The decision underscored the importance of the good faith requirement and the need for agreements to be practical and fair in addressing the needs of both parties.

The final orders of the Commission included the approval of the Emerald Commercial Pty Ltd T/As Emerald Commercial Services and the CFMEU Building and Construction Industry Enterprise Agreement 2011-2015. The court's decision provided clarity on the application of good faith and the criteria for assessing the reasonableness of enterprise agreements, affirming the importance of balanced and fair agreements in the workplace.

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