Construction, Forestry, Mining and Energy Union

[2013] FWCA 7521

FAIR WORK COMMISSION

DECISION

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

Construction, Forestry, Mining and Energy Union
(AG2013/10575)

CAPRICE NOMINEES AND THE CFMEU CONCRETE SAWING AND DRILLING ENTERPRISE AGREEMENT 2011-2015

Building, metal and civil construction industries
SENIOR DEPUTY PRESIDENT WATSON	MELBOURNE, 30 SEPTEMBER 2013

Application for approval of the Caprice Nominees and the CFMEU Concrete Sawing and Drilling Enterprise Agreement 2011-2015.

[1] An application has been made for approval of an enterprise agreement known as the Caprice Nominees and the CFMEU Concrete Sawing and Drilling 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 7 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 matter of the Construction, Forestry, Mining and Energy Union, the applicant sought approval of the CFMEU Concrete Sawing and Drilling Enterprise Agreement 2011-2015. The dispute arose in the Fair Work Commission, which was tasked with determining the merits of the application and whether the agreement should be registered. The parties involved were the union and the employer, with the union advocating for the terms of the agreement and the employer expressing concerns about certain provisions.

The legal issues before the court centred on whether the agreement complied with the Fair Work Act 2009. Specifically, the court had to examine if the agreement met the requirements for being a "small business" agreement, as defined by the Act, and if the process of developing the agreement was fair and reasonable. The union argued that the agreement was valid and should be registered, while the employer contended that several provisions were unfair and that the agreement did not meet the statutory criteria.

The Fair Work Commission deliberated on the submissions from both parties and considered the provisions of the Fair Work Act 2009. The court found that the agreement did not qualify as a small business agreement because it was not confined to a small business within the meaning of the Act. Furthermore, the court determined that the agreement was not procedurally fair as the union had not adequately consulted with the employer during the bargaining process. Consequently, the court decided not to approve the agreement.

The Fair Work Commission ordered that the application for approval of the CFMEU Concrete Sawing and Drilling Enterprise Agreement 2011-2015 be dismissed. The agreement was not registered, and the terms it contained would not be legally enforceable. The court's decision emphasised the importance of compliance with the Fair Work Act 2009 and the need for fair and reasonable bargaining processes in the creation of enterprise agreements.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established