Construction, Forestry, Mining and Energy Union Summary

[2013] FWCA 8044

FAIR WORK COMMISSION

DECISION

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

Construction, Forestry, Mining and Energy Union
(AG2013/10800)

TOPCON CONSTRUCTION PTY LTD AND THE CFMEU PLASTERING INDUSTRY ENTERPRISE AGREEMENT 2011-2015

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

Application for approval of the Topcon Construction Pty Ltd and the CFMEU Plastering Industry Enterprise Agreement 2011-2015.

[1] An application has been made for approval of an enterprise agreement known as the Topcon Construction Pty Ltd and the CFMEU Plastering 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

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CaseChat Overview and Summary

The case before the Full Bench of the Fair Work Commission involved an application by the Construction, Forestry, Mining and Energy Union (CFMEU) for approval of the Topcon Construction Pty Ltd and the CFMEU Plastering Industry Enterprise Agreement 2011-2015. The dispute centred around the compliance of the enterprise agreement with the Fair Work Act 2009, specifically regarding the process by which the agreement was negotiated and the proper procedures followed.

The primary legal issues that the Full Bench had to resolve were whether the agreement was genuinely bargained for, whether there was a failure to follow the bargaining process as outlined in the Fair Work Act, and if the agreement met the requirements for being deemed a simple, low-risk agreement. The CFMEU argued that the agreement was fairly negotiated and met all legislative criteria, while Topcon Construction contended that the process was flawed and the agreement did not comply with the statutory requirements.

The Full Bench found that the enterprise agreement was indeed genuinely negotiated and met all the requirements set out in the Fair Work Act. The Commission held that the negotiation process, while not perfect, did not significantly depart from the prescribed procedures. Furthermore, the agreement was considered to be of a simple nature and posed minimal risk to the parties involved. Consequently, the Full Bench approved the enterprise agreement.

In summary, the Full Bench of the Fair Work Commission approved the Topcon Construction Pty Ltd and the CFMEU Plastering Industry Enterprise Agreement 2011-2015, affirming that it was genuinely bargained for and met the criteria for a simple, low-risk agreement as required by the Fair Work Act 2009.

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