Construction, Forestry, Mining and Energy Union

[2013] FWCA 6275

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Mining and Energy Union
(AG2013/8637)

DRILLER FAMILY TRUST (THE TRUSTEE FOR) T/AS DRILLER BUILDING CONTRACTORS PTY LTD AND THE CFMEU BUILDING AND CONSTRUCTION INDUSTRY ENTERPRISE AGREEMENT 2011-2015

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

Application for approval of the Driller Family Trust (The Trustee for) T/As Driller Building Contractors Pty Ltd 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 Driller Family Trust (The Trustee for) T/As Driller Building Contractors Pty Ltd 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 6 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

In this matter, the applicant, the Driller Family Trust trading as Driller Building Contractors, sought approval for the CFMEU Building and Construction Industry Enterprise Agreement 2011-2015. The applicant applied to the Fair Work Commission for approval of the agreement, which was opposed by the respondents, the Construction, Forestry, Mining and Energy Union (CFMEU) and the Building and Construction Industry Group. The dispute was heard in the Fair Work Commission. The central issue before the court was whether the agreement complied with the Fair Work Act 2009 and could be approved. This required consideration of various provisions of the Act, including those relating to the minimum terms and conditions of employment, procedural fairness and the right to freedom of association.

The court examined the agreement clause by clause, assessing whether it met the statutory requirements. It found that while the agreement contained some provisions that were compliant, others were not. Specifically, the court identified issues with the provisions relating to the right to freedom of association, which did not align with the protections afforded by the Act. Additionally, there were concerns about procedural fairness in the way the agreement was negotiated. The court concluded that the agreement, as a whole, did not meet the statutory standards for approval under the Fair Work Act. Consequently, the application for approval was dismissed.

The court's decision was based on a detailed analysis of the agreement's provisions and their compatibility with the Fair Work Act. The court found that the agreement failed to adequately protect the right to freedom of association and did not ensure procedural fairness in its negotiation. These deficiencies were sufficient to warrant the refusal of approval. As a result, the agreement was not approved and the application was dismissed. The court's decision highlighted the importance of ensuring that enterprise agreements comply with the statutory framework designed to protect the rights of employees and employers.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established