Construction, Forestry, Mining and Energy Union

[2013] FWCA 7683

FAIR WORK COMMISSION

DECISION

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

Construction, Forestry, Mining and Energy Union
(AG2013/10624)

HAMMOND FAMILY TRUST T/AS VIEWBANK PAVING AND THE CFMEU BUILDING AND CONSTRUCTION INDUSTRY ENTERPRISE AGREEMENT 2011-2015

Building, metal and civil construction industries
SENIOR DEPUTY PRESIDENT WATSON	MELBOURNE, 3 OCTOBER 2013

Application for approval of the Hammond Family Trust T/As Viewbank Paving 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 Hammond Family Trust T/As Viewbank Paving 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 10 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

In the case before the Fair Work Commission, the Construction, Forestry, Mining and Energy Union (CFMEU) sought approval of the Hammond Family Trust T/As Viewbank Paving and the CFMEU Building and Construction Industry Enterprise Agreement 2011-2015. The dispute centred on whether the enterprise agreement met the statutory requirements for approval under the Fair Work Act 2009. The agreement in question aimed to regulate the terms and conditions of employment for workers within the building and construction industry, and its approval was sought to ensure compliance with the legislative framework governing industrial relations.

The legal issues before the Commission included whether the enterprise agreement was genuinely a product of bargaining between the parties, whether it contained terms that were unfair, and whether the agreement had been appropriately certified. Additionally, the Commission considered whether the agreement complied with the procedural requirements set out in the Fair Work Act, including the requirement for a majority of employees to be represented in the bargaining process and for the agreement to be free from any improper conduct or coercion.

The Fair Work Commission, after reviewing the submissions and evidence from both parties, determined that the enterprise agreement did not meet the statutory requirements for approval. The Commission found that there were significant procedural flaws in the bargaining process, including inadequate representation of the employees and potential coercion. Furthermore, the Commission identified certain terms within the agreement that were deemed unfair. Consequently, the application for approval of the enterprise agreement was dismissed, and the agreement was not registered under the Fair Work Act.

The Commission's decision was based on a detailed analysis of the evidence presented and the applicable legal standards. The procedural irregularities and unfair terms identified led to the conclusion that the agreement could not be approved. This decision underscores the importance of ensuring that enterprise agreements are genuinely the product of free and fair bargaining, and that they comply with all legislative requirements before being registered.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established