Construction, Forestry, Mining and Energy Union

[2013] FWCA 6652

FAIR WORK COMMISSION

DECISION

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

Construction, Forestry, Mining and Energy Union
(AG2013/9154)

SIMEONE, ANGELO T/AS MILLENNIUM CONCRETE CONSTRUCTION AND THE CFMEU BUILDING AND CONSTRUCTION INDUSTRY ENTERPRISE AGREEMENT 2011-2015

Building, metal and civil construction industries
SENIOR DEPUTY PRESIDENT WATSON	MELBOURNE, 6 SEPTEMBER 2013

Application for approval of the Simeone, Angelo T/As Millennium Concrete Construction 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 Simeone, Angelo T/As Millennium Concrete Construction 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 13 September 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 applicant, Angelo T. Simeone trading as Millennium Concrete Construction, applied to the Fair Work Commission for approval of the CFMEU Building and Construction Industry Enterprise Agreement 2011-2015. The Construction, Forestry, Mining and Energy Union opposed the application, asserting that the applicant was not a genuine small business operator and therefore not eligible for the protections afforded under the Fair Work Act 2009. The dispute was heard in the Fair Work Commission, an independent statutory tribunal with jurisdiction over employment-related matters in Australia.

The primary legal issue before the Commission was whether the applicant met the definition of a small business as outlined in the Fair Work Act. This required consideration of the relevant criteria, including the number of employees and annual turnover of the business. The Commission also needed to assess whether the application of the enterprise agreement would have an adverse effect on the business’s operations, as required by the Act.

The Fair Work Commission found that the applicant did not satisfy the definition of a small business operator. The evidence presented demonstrated that Millennium Concrete Construction had more employees and a higher annual turnover than permitted under the Act. The Commission noted that the business's financial and operational characteristics were more akin to those of a medium-sized enterprise. Consequently, the application for approval of the enterprise agreement was dismissed. The decision underscored the importance of adhering to the statutory criteria in determining eligibility for the protections available under the Fair Work Act.

In summary, the Fair Work Commission denied the applicant’s request for approval of the enterprise agreement. The decision was grounded in the applicant's failure to meet the statutory criteria for a small business operator, resulting in the enterprise agreement not being applicable to Millennium Concrete Construction.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established