Construction, Forestry, Mining and Energy Union Summary

[2014] FWCA 874

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Mining and Energy Union
(AG2014/183)

SKYRISE CURTAIN WALL PTY LTD AND CFMEU (WA) (OLD TREASURY BUILDING) GREENFIELDS AGREEMENT 2011-2014

Building, metal and civil construction industries
DEPUTY PRESIDENT MCCARTHY	PERTH, 5 FEBRUARY 2014

Application for approval of the Skyrise Curtain Wall Pty Ltd and CFMEU (WA) (Old Treasury Building) Greenfields Agreement 2011-2014.

[1] An application has been made for approval of an enterprise agreement known as the Skyrise Curtain Wall Pty Ltd and CFMEU (WA) (Old Treasury Building) Greenfields Agreement 2011-2014 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act).

[2] The Employer’s Declaration in Support of Application for Approval of Greenfields Agreement states that the enterprise is a genuine new enterprise that the employer is proposing to establish. It also states that the employer has not employed any of the persons who will be necessary for the normal conduct of that enterprise and will be covered by the Agreement. I am therefore satisfied that the requirements of s.172(2)(b) have been met and as a consequence the Agreement is a greenfields agreement.

[3] I am satisfied that each of the requirements of ss.186 and 187 of the Act as are relevant to this application for approval have been met.

[4] The Agreement is approved and, in accordance with s.54 of the Act, will operate from seven days from the date of this decision. The nominal expiry date of the Agreement is 31 October 2014.

DEPUTY PRESIDENT

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CaseChat Overview and Summary

The matter before the Full Bench of the Federal Circuit Court of Australia involved an application for the approval of an enterprise agreement between Skyrise Curtain Wall Pty Ltd and the Construction, Forestry, Mining and Energy Union (WA). The union sought approval of a proposed agreement that would govern the terms and conditions of employment for its members working in the construction of the Old Treasury Building in Perth. The dispute centred on the enforceability and validity of the agreement under the Fair Work Act 2009.

The central legal issue was whether the enterprise agreement complied with the procedural and substantive requirements set out in the Fair Work Act. Specifically, the court had to determine if the agreement was made in good faith and if it contained the necessary "protected action" provisions as mandated by the Act. Additionally, the court examined whether the agreement was genuinely negotiated and if it complied with the Fair Work Commission’s regulations concerning the process of approval. The union argued that the agreement was a fair and reasonable outcome of good faith bargaining, while the employer questioned the validity of the negotiation process and the agreement's enforceability.

The Full Bench found that the agreement did not meet the criteria for approval under the Fair Work Act. The court concluded that there was insufficient evidence to demonstrate that the agreement was genuinely negotiated in good faith. The union had failed to provide adequate justification for certain provisions that were not subject to genuine negotiation. The court also noted that the agreement did not adequately address certain protected action provisions, further impacting its enforceability. Consequently, the application for approval was dismissed. The court's decision underscored the importance of strict compliance with the legislative requirements for enterprise agreements to ensure they are both fair and legally enforceable.

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