Construction, Forestry, Mining and Energy Union

[2013] FWCA 8387

FAIR WORK COMMISSION

DECISION

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

Construction, Forestry, Mining and Energy Union
(AG2013/10986)

GAYLARD FAMILY TRUST (THE TRUSTEE FOR) T/AS RAW RECRUITMENT PTY LTD AND THE CFMEU CIVIL CONSTRUCTION INDUSTRY ENTERPRISE AGREEMENT 2011-2015

Building, metal and civil construction industries
SENIOR DEPUTY PRESIDENT WATSON	MELBOURNE, 25 OCTOBER 2013

Application for approval of the Gaylard Family Trust (The Trustee for) T/As Raw Recruitment 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 Gaylard Family Trust (The Trustee for) T/As Raw Recruitment 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 1 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

In the Fair Work Commission, the Construction, Forestry, Mining and Energy Union brought an application against the Gaylard Family Trust (the trustee for) trading as Raw Recruitment Pty Ltd, seeking approval of the CFMEU Civil Construction Industry Enterprise Agreement 2011-2015. The dispute centered around whether the proposed agreement complied with the relevant legislative framework and if it could be certified as a single interest employer agreement. The Union argued that the agreement was necessary to protect the rights and interests of employees within the civil construction industry, while the respondent contested the agreement's validity and enforceability.

The legal issues before the court encompassed the interpretation and application of the Fair Work Act 2009, specifically sections concerning the certification of single interest employer agreements. The court had to determine whether the agreement met the statutory requirements for approval, including if it was genuinely negotiated and if it addressed the needs of the employees within the industry. Furthermore, the court needed to consider whether the agreement complied with the Fair Work (Registered Organisations) Act 2009 and if the Union was an appropriate bargaining agent for the employees in question.

The court found that the proposed agreement did not satisfy the statutory requirements for approval. The key issue was that the Union was not an appropriate bargaining agent for the employees within the civil construction industry, as the agreement primarily focused on employment conditions for recruitment agency workers rather than civil construction employees. As a result, the court determined that the agreement could not be certified as a single interest employer agreement. The court concluded that the application for approval should be dismissed, as the agreement did not meet the necessary criteria under the Fair Work Act 2009.

Consequently, the Fair Work Commission dismissed the application for approval of the CFMEU Civil Construction Industry Enterprise Agreement 2011-2015, finding that it did not comply with the statutory requirements for a single interest employer agreement. The decision highlighted the importance of ensuring that the appropriate bargaining agent is involved in the negotiation and certification process for enterprise agreements within specific industries.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established