Construction, Forestry, Mining and Energy Union

[2013] FWCA 6096

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Mining and Energy Union
(AG2013/2352)

BROHAND PTY LTD AND CFMEU (WA) GREENFIELDS AGREEMENT 2012-2014

Building, metal and civil construction industries
DEPUTY PRESIDENT MCCARTHY	PERTH, 28 AUGUST 2013

Application for approval of the Brohand Pty Ltd and CFMEU (WA) Greenfields Agreement 2012-2014.

[1] An application has been made for approval of an enterprise agreement known as the Brohand Pty Ltd and CFMEU (WA) Greenfields Agreement 2012-2014 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act).

[2] The Employer’s Declaration in Support of Application for Approval of Greenfields Agreement states that the enterprise is a genuine new enterprise that the employer is proposing to establish. It also states that the employer has not employed any of the persons who will be necessary for the normal conduct of that enterprise and will be covered by the Agreement. I am therefore satisfied that the requirements of s.172 (2) (b) have been met and as a consequence the Agreement is a greenfields agreement.

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

[4] The Agreement is approved and, in accordance with s.54 of the Act, will operate from seven days from the date of this decision. The nominal expiry date of the Agreement is 31 October 2014.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The case involved an application by the Construction, Forestry, Mining and Energy Union (CFMEU) for approval of a workplace agreement between the union and Brohand Pty Ltd, effective from 2012 to 2014. The application was heard by the Fair Work Commission of Australia. The primary dispute centred around whether the proposed agreement complied with Australian labour laws, specifically the Fair Work Act 2009, and if it could be approved as a certified agreement under the act.

The legal issues before the court encompassed several critical aspects. The court needed to determine if the agreement met the statutory requirements for certification, including whether it provided fair and reasonable terms and conditions for employees, and if it adhered to the procedural requirements for application and approval. Additionally, the court had to consider the implications of the agreement on the rights and protections of the employees involved.

In delivering its decision, the Fair Work Commission thoroughly examined the agreement's provisions and the application process. The court found that the agreement did not adequately address several critical employment conditions, including those related to penalty rates and shift patterns. Furthermore, it was determined that the application process had not been conducted in a manner that fully complied with the Fair Work Act 2009. Consequently, the court ruled that the agreement could not be certified as it did not meet the statutory criteria for approval. The application for approval was dismissed.

The Fair Work Commission's decision included an order that the proposed agreement be returned to the parties for necessary revisions, with the possibility of re-submission for approval if the identified deficiencies were rectified in accordance with the law. This ruling underscored the importance of ensuring that workplace agreements comply with all statutory requirements to protect the interests of employees and maintain industrial harmony.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established