Construction, Forestry, Mining and Energy Union

[2013] FWCA 6316

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Mining and Energy Union
(AG2013/8774)

MORELAND WIRE FENCING & GATES 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 Moreland Wire Fencing & Gates 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 Moreland Wire Fencing & Gates 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

The matter before the Full Bench of the Fair Work Commission involved an application for approval of the Moreland Wire Fencing & Gates Pty Ltd and the Construction, Forestry, Mining and Energy Union Building and Construction Industry Enterprise Agreement 2011-2015. The applicant, Moreland Wire Fencing & Gates Pty Ltd, sought approval for the enterprise agreement, which outlined terms and conditions of employment for workers within its business. The respondent, the Construction, Forestry, Mining and Energy Union, supported the agreement.

The primary legal issues before the court were whether the enterprise agreement met the statutory requirements for approval under the Fair Work Act 2009. Specifically, the court had to determine if the agreement provided for fair and reasonable terms and conditions of employment, and if it was genuinely negotiated between the employer and the union. The court also had to assess whether the agreement complied with the "better off overall test" and if it included provisions that were contrary to public policy or not in the public interest.

In its decision, the Full Bench found that the enterprise agreement did not comply with the statutory requirements for approval. The court held that certain provisions in the agreement were not genuinely negotiated and were, in fact, unilaterally imposed by the employer. Additionally, the court determined that the agreement did not meet the better off overall test, as it did not provide employees with a sufficient increase in their terms and conditions of employment. The court further found that some provisions in the agreement were contrary to public policy, as they allowed for the dismissal of employees without cause or notice, which was not in the public interest.

The Full Bench declined to approve the enterprise agreement, and it did not come into effect. The decision highlighted the importance of genuine negotiation and the need for enterprise agreements to provide fair and reasonable terms and conditions of employment, as well as meeting the better off overall test. The court's decision also emphasised the significance of ensuring that enterprise agreements do not include provisions that are contrary to public policy or not in the public interest.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established