Construction, Forestry, Mining and Energy Union

[2013] FWCA 8051

FAIR WORK COMMISSION

DECISION

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

Construction, Forestry, Mining and Energy Union
(AG2013/10817)

BARRY’S EXCAVATIONS PTY LTD T/AS A OK EXCAVATIONS AND THE CFMEU CIVIL CONSTRUCTION INDUSTRY ENTERPRISE AGREEMENT 2011-2015

Building, metal and civil construction industries
SENIOR DEPUTY PRESIDENT WATSON	MELBOURNE, 15 OCTOBER 2013

Application for approval of the Barry’s Excavations Pty Ltd T/As A OK Excavations 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 Barry’s Excavations Pty Ltd T/As A OK Excavations 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 22 October 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 Construction, Forestry, Mining and Energy Union (CFMEU) sought approval for an enterprise agreement between Barry’s Excavations Pty Ltd trading as A OK Excavations and the CFMEU. The matter was heard in the Fair Work Commission, Australia's workplace relations tribunal. The key issue before the tribunal was whether the agreement met the statutory requirements for approval under the Fair Work Act 2009. This involved examining whether the agreement was made in good faith, the process by which it was negotiated, and whether it contained the necessary minimum terms and conditions of employment.

The tribunal found that the agreement was made in good faith and that the negotiation process was procedurally fair. However, the tribunal noted that the agreement did not include all the minimum terms and conditions mandated by the Fair Work Act. Specifically, the agreement lacked provisions regarding the maximum standard hours of work per week, which is a fundamental term required by the Act. Despite these shortcomings, the tribunal exercised its discretion to approve the agreement on the basis that the parties had acted in good faith and that the deficiencies could be rectified through future negotiations.

Given the tribunal's findings, it approved the enterprise agreement with certain conditions. These conditions included a requirement that the parties revisit the agreement within six months to ensure that all minimum terms and conditions are included. The tribunal also mandated that the agreement be subject to ongoing compliance monitoring to ensure that it meets all statutory requirements.

The final orders included the approval of the enterprise agreement subject to the conditions set out above. The tribunal directed that the agreement be registered and enforceable from the date of the decision, while also mandating that the parties address the identified deficiencies within the specified timeframe.

CaseChat Overview and Summary

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Background to the litigation

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Legal Principle Established