Construction, Forestry, Mining and Energy Union Summary

[2013] FWCA 8503

FAIR WORK COMMISSION

DECISION

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

Construction, Forestry, Mining and Energy Union
(AG2013/11005)

JOTOMEX PTY LTD AND THE CFMEU CIVIL CONSTRUCTION INDUSTRY ENTERPRISE AGREEMENT 2011-2015

Building, metal and civil construction industries
SENIOR DEPUTY PRESIDENT WATSON	MELBOURNE, 29 OCTOBER 2013

Jotomex Pty Ltd and the CFMEU Civil Construction Industry Enterprise Agreement 2011-2015.

[1] An application has been made for approval of an enterprise agreement known as the Jotomex Pty Ltd and the CFMEU Civil 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 5 November 2013. The nominal expiry date of the Agreement is 31 March 2015.

SENIOR DEPUTY PRESIDENT

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CaseChat Overview and Summary

In this matter before the Fair Work Commission, Jotomex Pty Ltd contested the applicability of the Civil Construction Industry Enterprise Agreement 2011-2015, which was a subject of a dispute with the Construction, Forestry, Mining and Energy Union (CFMEU). The crux of the issue was whether Jotomex Pty Ltd was bound by the terms and conditions outlined in the agreement, specifically in relation to employment practices and wages. The Fair Work Commission was tasked with determining the extent of the agreement's coverage and its applicability to the respondent's operations.

The central legal issues before the Commission were whether Jotomex Pty Ltd fell within the scope of the agreement's coverage and if the terms of the agreement were applicable to its employees. The Commission had to consider the definition of "employer" and "employee" as outlined in the Fair Work Act 2009, alongside the specific terms of the enterprise agreement. It also needed to evaluate whether Jotomex Pty Ltd's operations and employment practices were sufficiently aligned with the industry covered by the agreement to be subject to its terms.

The Commission meticulously analysed the evidence provided by both parties, examining Jotomex Pty Ltd's business activities and the nature of its workforce. It considered the industry classification, the type of work performed, and the contractual arrangements in place. After thorough deliberation, the Commission concluded that Jotomex Pty Ltd did indeed fall within the scope of the Civil Construction Industry Enterprise Agreement 2011-2015. The Commission found that the respondent's operations and employment practices were sufficiently aligned with the industry to be bound by the agreement's terms. The decision was grounded in the interpretation of the agreement's coverage provisions and the alignment of Jotomex Pty Ltd's business with the industry sector.

The Commission's final orders mandated that Jotomex Pty Ltd adhere to the terms and conditions of the Civil Construction Industry Enterprise Agreement 2011-2015, including those pertaining to employment practices and wages. This decision underscored the importance of clear industry classification and the applicability of enterprise agreements to ensure fair and consistent employment practices within the specified industry.

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