Construction, Forestry, Mining and Energy Union

[2013] FWCA 7821

FAIR WORK COMMISSION

DECISION

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

Construction, Forestry, Mining and Energy Union
(AG2013/10738)

ELITE SHOPFITTING AUSTRALIA PTY LTD T/AS ELITE SHOPFITTING AND THE CFMEU BUILDING AND CONSTRUCTION INDUSTRY ENTERPRISE AGREEMENT 2011-2015

Building, metal and civil construction industries
SENIOR DEPUTY PRESIDENT WATSON	MELBOURNE, 8 OCTOBER 2013

Application for approval of the Elite Shopfitting Australia Pty Ltd T/As Elite Shopfitting 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 Elite Shopfitting Australia Pty Ltd T/As Elite Shopfitting 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 15 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 case involved the Construction, Forestry, Mining and Energy Union (CFMEU) and Elite Shopfitting Australia Pty Ltd, which trades as Elite Shopfitting. The matter was before the Fair Work Commission (FWC) where the CFMEU sought approval of the Elite Shopfitting and CFMEU Building and Construction Industry Enterprise Agreement 2011-2015. The central dispute was whether the enterprise agreement complied with the Fair Work Act 2009 and was therefore eligible for approval and registration by the FWC.

The primary legal issues before the Commission were whether the agreement contained the necessary certification provisions and whether the agreement satisfied the good faith bargaining requirements of the Act. Specifically, the Commission needed to determine if the agreement was genuinely negotiated between the parties and if it was made in good faith. Additionally, the Commission assessed whether the agreement met the minimum standards set out in the National Employment Standards and whether it contained appropriate dispute resolution provisions.

The Fair Work Commission found that the agreement was not in compliance with the Fair Work Act. The Commission determined that the agreement lacked sufficient certification provisions, which are necessary for the approval of an enterprise agreement. Furthermore, the Commission found that there was insufficient evidence to demonstrate that the agreement was genuinely negotiated and made in good faith. The Commission also identified issues with the agreement's provisions on termination and redundancy, which did not meet the minimum standards under the National Employment Standards. Consequently, the application for approval of the agreement was dismissed.

No orders were made as the application for approval of the enterprise agreement was dismissed by the Fair Work Commission.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established