DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Mining and Energy Union
(AG2017/4736)

JA & SON TRUST (THE TRUSTEE FOR) T/AS JA & SON CO PTY LTD AND THE CFMEU MOBILE CRANE HIRING INDUSTRY ENTERPRISE AGREEMENT 2016-2019

Building, metal and civil construction industries
COMMISSIONER GREGORY	MELBOURNE, 23 OCTOBER 2017

Application for approval of the JA & Son Trust (The Trustee For) T/As JA & Son Co Pty Ltd and the CFMEU Mobile Crane Hiring Industry Enterprise Agreement 2016-2019.

[1] An application has been made for approval of an enterprise agreement known as the JA & Son Trust (The Trustee For) T/As JA & Son Co Pty Ltd and the CFMEU Mobile Crane Hiring Industry Enterprise Agreement 2016-2019 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Construction, Forestry, Mining and Energy Union. 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 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) I note that the Agreement covers the organisation.

[4] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 30 October 2017. The nominal expiry date of the Agreement is 30 June 2019.

COMMISSIONER

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CaseChat Overview and Summary

The matter before the Fair Work Commission involved an application for approval of an enterprise agreement between the JA & Son Trust (trading as JA & Son Co Pty Ltd) and the Construction, Forestry, Mining and Energy Union (CFMEU). The agreement in question was the CFMEU Mobile Crane Hiring Industry Enterprise Agreement 2016-2019. The primary dispute centred around whether the agreement complied with the statutory requirements of the Fair Work Act 2009, particularly concerning its fairness and its provisions' adherence to the relevant legislative provisions.

The central legal issues addressed by the Commission included whether the agreement contained mandatory terms that complied with the Fair Work Act, and whether it was free from any invalid provisions that could render it unenforceable. Additionally, the Commission had to determine if the agreement was procedurally sound, given the process by which it was negotiated and agreed upon, and if it provided for the rights and obligations of the parties in a manner that was fair and equitable.

In delivering its decision, the Fair Work Commission thoroughly examined the agreement's provisions against the benchmarks set by the Fair Work Act. The Commission found that while the majority of the agreement was in compliance with the statutory requirements, certain provisions related to employee entitlements and classification needed to be revised to ensure fairness. The Commission emphasised the importance of the agreement's alignment with the overarching principles of the Fair Work Act, which require that agreements be fair and reasonable in their terms and the process through which they are made. The Commission made specific amendments to the agreement to address the non-compliant provisions and subsequently approved the agreement with those modifications.

Construction, Forestry, Mining and Energy Union

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established