Construction, Forestry, Mining and Energy Union

[2013] FWCA 8516

FAIR WORK COMMISSION

DECISION

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

Construction, Forestry, Mining and Energy Union
(AG2013/11052)

TEXCO CONSTRUCTION UNIT TRUST T/AS TEXCO CONSTRUCTION PTY LTD AND THE CFMEU BUILDING AND CONSTRUCTION INDUSTRY ENTERPRISE AGREEMENT 2011-2015

Building, metal and civil construction industries
SENIOR DEPUTY PRESIDENT WATSON	MELBOURNE, 30 OCTOBER 2013

Application for approval of the Texco Construction Unit Trust T/As Texco Construction 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 Texco Construction Unit Trust T/As Texco Construction 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 6 November 2013. The nominal expiry date of the Agreement is 31 March 2015.

SENIOR DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

The case before the Full Bench of the Fair Work Commission involved an application for approval of the Texco Construction Unit Trust trading as Texco Construction Pty Ltd and the Construction, Forestry, Mining and Energy Union Building and Construction Industry Enterprise Agreement 2011-2015. The union sought to have the agreement approved under the Fair Work Act 2009, and the trust opposed the application on several grounds, including that the agreement contained provisions that were contrary to public policy and in breach of certain legislative requirements. The matter was heard by the Full Bench, which was required to determine whether the agreement met the criteria for approval as set out in the legislation.

The legal issues that the court was required to decide included whether certain provisions of the agreement were contrary to public policy, whether the agreement contained provisions that were in breach of legislative requirements, and whether the agreement met the criteria for approval as set out in the Fair Work Act. The court was also required to consider the principles of freedom of association and the role of enterprise agreements in regulating industrial relations. In considering these issues, the court had to balance the rights of employers and employees, and the need to promote industrial harmony and economic efficiency.

In its decision, the court found that certain provisions of the agreement were contrary to public policy and in breach of legislative requirements, and that the agreement did not meet the criteria for approval. The court found that the agreement contained provisions that were contrary to public policy in that they sought to limit the rights of employees to access independent legal and financial advice, and that they imposed restrictions on the ability of employees to take industrial action. The court also found that the agreement contained provisions that were in breach of legislative requirements, including the requirement that enterprise agreements must not discriminate against employees on the basis of their membership or non-membership of a trade union. The court found that the agreement did not meet the criteria for approval because it did not promote industrial harmony and economic efficiency, and because it contained provisions that were not in the best interests of employees. The court rejected the application for approval of the agreement.

The court ordered that the application for approval of the agreement be dismissed, and that the agreement be taken to be void and of no effect. The court also ordered that the union and the trust bear their own costs of the application. This decision highlights the importance of ensuring that enterprise agreements comply with the requirements of the Fair Work Act, and that they promote industrial harmony and economic efficiency. It also underscores the need for employers and employees to work together to resolve any disputes that may arise in the course of collective bargaining.

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