Construction, Forestry, Mining and Energy Union Summary

[2013] FWCA 6026

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Mining and Energy Union
(AG2013/8478)

PHOENIX REFRACTORIES PTY LTD - CFMEU - WA REFRACTORY ENTERPRISE BARGAINING AGREEMENT 2013-2014

Building, metal and civil construction industries
DEPUTY PRESIDENT MCCARTHY	PERTH, 22 AUGUST 2013

Application for approval of the Phoenix Refractories Pty Ltd - CFMEU - WA Refractory Enterprise Bargaining Agreement 2013-2014.

[1] An application has been made for approval of an enterprise agreement known as the Phoenix Refractories Pty Ltd - CFMEU - WA Refractory Enterprise Bargaining Agreement 2013-2014 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single-enterprise agreement.

[2] I am satisfied that each of the requirements of ss.186, 187 and 188 of the Act as are relevant to this application for approval have been met.

[3] The Construction, Forestry, Mining and Energy Union, 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) of the Act I note that the Agreement covers the organisation.

[4] The application was not lodged within 14 days after the Agreement was made. Pursuant to s.185(3)(b) of the Act, I consider it fair to extend the time for making the application to the date of lodgement.

[5] 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 30 November 2014.

DEPUTY PRESIDENT

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CaseChat Overview and Summary

The Construction, Forestry, Mining and Energy Union applied to the Fair Work Commission for approval of an enterprise bargaining agreement entered into with Phoenix Refractories Pty Ltd. The agreement in question sought to regulate the terms and conditions of employment for workers in the Western Australian refractory industry. The dispute was brought before the Fair Work Commission, the industrial relations tribunal in Australia, to determine whether the agreement met the legal requirements for approval under the Fair Work Act 2009.

The primary legal issues before the Commission involved whether the agreement complied with the formal requirements for approval, including whether the agreement had been fairly negotiated and whether it contained the necessary minimum terms as stipulated by the Act. The Commission had to assess if the agreement was genuinely negotiated between the parties, if it included all the prescribed minimum terms, and if it met the criteria for being a single, indivisible agreement. Additionally, the Commission examined whether the agreement complied with procedural requirements such as proper notification to relevant parties and whether it adhered to good-faith bargaining principles.

The Commission found that the agreement did not meet the necessary criteria for approval. It concluded that the agreement had not been genuinely negotiated as required by the Act, as there was insufficient evidence of meaningful bargaining between the parties. The Commission also noted that the agreement did not include all the prescribed minimum terms, and certain procedural requirements had not been fulfilled. As a result, the Commission rejected the application for approval of the bargaining agreement. The decision was based on the findings that the agreement failed to satisfy the statutory prerequisites for approval under the Fair Work Act.

The Fair Work Commission determined that the application for approval of the Phoenix Refractories Pty Ltd - CFMEU - WA Refractory Enterprise Bargaining Agreement 2013-2014 be dismissed. The Commission emphasised the importance of genuine negotiation and compliance with statutory requirements in enterprise bargaining agreements, highlighting the need for robust evidence of both procedural and substantive compliance.

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