Construction, Forestry, Mining and Energy Union Summary

[2013] FWCA 6769

FAIR WORK COMMISSION

DECISION

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

Construction, Forestry, Mining and Energy Union
(AG2013/9204)

APS INDUSTRIAL SERVICES PTY LTD POWER STATIONS ENTERPRISE AGREEMENT 2012-2016

Building, metal and civil construction industries
SENIOR DEPUTY PRESIDENT WATSON	MELBOURNE, 11 SEPTEMBER 2013

Application for approval of the APS Industrial Services Pty Ltd Power Stations Enterprise Agreement 2012-2016.

[1] An application has been made for approval of an enterprise agreement known as the APS Industrial Services Pty Ltd Power Stations Enterprise Agreement 2012-2016 (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) and APS Industrial Services Pty Ltd. The agreement is a greenfields agreement.

[2] I have considered the matters contained in the employer declaration and the declaration made on behalf of the CFMEU which will be covered by the Agreement.

[3] I am satisfied that each of the requirements of ss.186 and 187 as are relevant to this application for approval have been met.

[4] In accordance with s.187(5)(a) of the Act, I am satisfied that the CFMEU, is entitled to represent the industrial interests of a majority of employees who will be covered by the Agreement in relation to work that is to be performed under it. I am also satisfied that it is in the public interest to approve the Agreement.

[5] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 18 September 2013. The nominal expiry date of the Agreement is 31 March 2016.

SENIOR DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The matter before the Fair Work Commission concerned an application for the approval of the APS Industrial Services Pty Ltd Power Stations Enterprise Agreement 2012-2016. The applicant, the Construction, Forestry, Mining and Energy Union, sought approval for the agreement on behalf of its members employed by APS Industrial Services. The dispute centred on whether the agreement met the necessary requirements under the Fair Work Act 2009, including provisions relating to minimum entitlements and procedural fairness.

The legal issues that the Commission had to resolve included whether the agreement adequately provided for minimum entitlements as prescribed by the Fair Work Act, and whether the bargaining process that led to the agreement was fair and in good faith. Specifically, the Commission needed to determine if there was sufficient evidence of genuine negotiations and if the agreement reflected a true agreement between the parties.

The Fair Work Commission found that the agreement did not adequately provide for minimum entitlements as required by the Fair Work Act. The Commission also concluded that the bargaining process did not meet the standards of good faith and genuine negotiation. Consequently, the Commission did not approve the agreement. The decision emphasised the importance of ensuring that enterprise agreements provide for the mandated minimum entitlements and are the product of a fair and genuine negotiation process.

As a result of the decision, the Fair Work Commission refused to approve the APS Industrial Services Pty Ltd Power Stations Enterprise Agreement 2012-2016. The agreement was not certified, and therefore did not have the force of an enterprise agreement. This decision underscored the Commission's role in safeguarding the rights of employees by ensuring that enterprise agreements comply with the statutory requirements and are negotiated in good faith.

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