Construction, Forestry, Mining and Energy Union

[2013] FWCA 8819

FAIR WORK COMMISSION

DECISION

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

Construction, Forestry, Mining and Energy Union
(AG2013/11355)

ELEPHANTS FOOT WASTE COMPACTORS PTY LTD AND THE CFMEU BUILDING AND CONSTRUCTION INDUSTRY ENTERPRISE AGREEMENT 2011-2015

Building, metal and civil construction industries
SENIOR DEPUTY PRESIDENT WATSON	MELBOURNE, 12 NOVEMBER 2013

Application for approval of the Elephants Foot Waste Compactors 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 Elephants Foot Waste Compactors 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 19 November 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 Full Bench of the Fair Work Commission concerned an application for approval of the Elephants Foot Waste Compactors Pty Ltd and the Construction, Forestry, Mining and Energy Union Building and Construction Industry Enterprise Agreement 2011-2015. The applicant, the union, sought the Commission's approval of the enterprise agreement, which was negotiated between the union and the respondent, the employer, under section 226 of the Fair Work Act 2009. The dispute arose from the employer's contention that the agreement did not meet the requirements for registration due to procedural irregularities and potential contraventions of the Act's good faith bargaining provisions.

The legal issues before the Full Bench centred on whether the enterprise agreement was properly negotiated and whether it complied with the statutory requirements for good faith bargaining. The employer argued that the union failed to provide necessary information to the employer and that the negotiation process did not adhere to the Act's good faith obligations. Furthermore, the employer contended that the agreement contained provisions that were inconsistent with the Act, including terms that could potentially lead to forced transfers of employees between different employers.

The Full Bench considered the evidence presented by both parties and examined the negotiation process and the contents of the agreement. The Commission found that while there were procedural shortcomings in the negotiation process, these did not amount to a failure of good faith bargaining. The Full Bench concluded that the union's conduct did not prevent the employer from participating in the negotiation process and that the agreement did not contravene the Act's good faith requirements. Additionally, the Commission held that the agreement's provisions did not breach the Act, as they were consistent with the union's bargaining objectives and did not impose unreasonable conditions on the employer. Consequently, the Full Bench approved the enterprise agreement.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established