Construction, Forestry, Mining and Energy Union

[2014] FWCA 1810

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Mining and Energy Union
(AG2013/12134)

TRIDENT CONSTRUCTION RESOURCES PTY LTD AND CFMEU (WA) AND EMPLOYEES ENTERPRISE AGREEMENT 2011-2014

Building, metal and civil construction industries
DEPUTY PRESIDENT GOSTENCNIK	MELBOURNE, 18 MARCH 2014

Application for approval of the Trident Construction Resources Pty Ltd and CFMEU (WA) and Employees Enterprise Agreement 2011-2014.

[1] An application has been made for approval of an enterprise agreement known as the Trident Construction Resources Pty Ltd and CFMEU (WA) and Employees Enterprise Agreement 2011-2014 (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).

[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 was approved on 18 March 2014 and, in accordance with s.54, will operate from 25 March 2014. The nominal expiry date of the Agreement is 31 October 2014.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The case involved an application for the approval of an enterprise agreement between Trident Construction Resources Pty Ltd and the Construction, Forestry, Mining and Energy Union (WA). The matter was heard by the Fair Work Commission, which was required to determine whether the agreement met the statutory requirements for approval under the Fair Work Act 2009. The central issue before the Commission was whether the agreement contained a valid and effective mechanism for the resolution of future disputes between the parties.

The Commission examined the provisions of the agreement to determine if they complied with the statutory obligations for dispute resolution mechanisms. Specifically, the Commission assessed whether the agreement included a clear and concise process for resolving future disputes, including provisions for conciliation and arbitration. The Commission also considered whether the agreement provided for the resolution of disputes in a timely and efficient manner, without undue delay or expense. Ultimately, the Commission found that the agreement did not meet the statutory requirements for approval because it did not include a valid and effective mechanism for the resolution of future disputes.

In reaching its decision, the Commission noted that the agreement provided for the resolution of disputes through a process of conciliation and, if necessary, arbitration. However, the Commission found that the agreement did not specify the steps to be taken in the conciliation process or the timeframes for completing the process. The Commission also found that the agreement did not provide for the appointment of an arbitrator or the procedures for selecting an arbitrator. As a result, the Commission concluded that the agreement did not provide for the resolution of disputes in a timely and efficient manner, without undue delay or expense. The Commission therefore refused to approve the agreement.

The Commission's decision highlights the importance of including clear and detailed provisions for dispute resolution in enterprise agreements. Employers and unions must ensure that their agreements provide for a valid and effective mechanism for resolving future disputes, including provisions for conciliation and arbitration. Failure to do so may result in the refusal of approval by the Fair Work Commission.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established