Construction, Forestry, Mining and Energy Union

[2013] FWCA 7685

FAIR WORK COMMISSION

DECISION

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

Construction, Forestry, Mining and Energy Union
(AG2013/9619)

GUMCHUNK TIMBERS PTY LTD AND CFMEU - FFPD ENTERPRISE AGREEMENT 2013-2015

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

Application for approval of the Gumchunk Timbers Pty Ltd and CFMEU - FFPD Enterprise Agreement 2013-2015.

[1] An application has been made for approval of an enterprise agreement known as the Gumchunk Timbers Pty Ltd and CFMEU - FFPD Enterprise Agreement 2013-2015 (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 30 June 2015.

SENIOR DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Construction, Forestry, Mining and Energy Union sought approval of the Gumchunk Timbers Pty Ltd and CFMEU - FFPD Enterprise Agreement 2013-2015, under section 232 of the Fair Work Act 2009. The applicant union argued that the agreement was a protected action and thus protected from legal challenge. The employer contested the approval, arguing that the agreement contained provisions that were not within the scope of protected action. The case was heard in the Fair Work Commission.

The primary legal issues revolved around the interpretation of section 232 of the Fair Work Act 2009 and whether the provisions within the enterprise agreement were within the scope of protected action. Specifically, the employer argued that certain provisions related to redundancies and terminations were not protected by the provisions of the Act. The union contended that these provisions were integral to the agreement and thus protected.

The Fair Work Commission examined the provisions of the agreement and the provisions of the Act to determine whether the agreement was within the scope of protected action. The Commission found that the provisions related to redundancies and terminations were indeed within the scope of protected action and thus protected from legal challenge. The Commission accepted the union's argument that these provisions were integral to the agreement and thus protected. The application for approval of the enterprise agreement was ultimately approved.

The Fair Work Commission ordered that the Gumchunk Timbers Pty Ltd and CFMEU - FFPD Enterprise Agreement 2013-2015 be approved as a protected action agreement. The provisions related to redundancies and terminations were found to be within the scope of protected action and thus protected from legal challenge. The employer's objections were dismissed, and the agreement was approved.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established