Construction, Forestry, Mining and Energy Union

[2013] FWCA 9975

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Mining and Energy Union
(AG2013/11975)

BFD CONSTRUCTIONS PTY LTD AND THE CFMEU BUILDING AND CONSTRUCTION INDUSTRY ENTERPRISE AGREEMENT 2011-2015

Building, metal and civil construction industries
SENIOR DEPUTY PRESIDENT WATSON	MELBOURNE, 19 DECEMBER 2013

Application for approval of the BFD Constructions 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 BFD Constructions 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 26 December 2013. 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

The matter before the Fair Work Commission was an application for approval of the Building, Forestry, Mining and Energy Union's enterprise agreement with BFD Constructions Pty Ltd. The union sought to have the agreement, which was concluded in 2011, formally approved under the Fair Work Act 2009. The primary dispute centred around whether the agreement met the legal criteria for approval, specifically if it adhered to the requirements for good faith bargaining, covered appropriate terms and conditions of employment, and was made in the absence of protected industrial action.

The central legal issues the court had to address included whether the union had genuinely bargained in good faith, if the terms and conditions were fair and reasonable, and whether the agreement was made without the influence of any protected industrial action. The court had to scrutinise the negotiation process to ensure it complied with statutory obligations and the spirit of the Act, as well as evaluate the substantive provisions of the agreement to determine if they were equitable and just for the employees and employers involved.

Upon reviewing the evidence and arguments presented, the Fair Work Commission concluded that the union had indeed engaged in genuine bargaining and that the terms of the agreement were fair and reasonable. The commission found no evidence of coercion or undue influence in the negotiation process, and the substantive provisions were deemed to be equitable, meeting the statutory criteria for approval. Consequently, the application for approval was granted, and the enterprise agreement was formally recognised, thereby providing legal certainty and stability to the employment conditions between the union and the company.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established