Construction, Forestry, Mining and Energy Union

[2013] FWCA 6021

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Mining and Energy Union
(AG2013/2354)

DI TRENTO GROUP AND CFMEU (WA) AND EMPLOYEES ENTERPRISE AGREEMENT 2011-2014

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

Application for approval of the Di Trento Group and CFMEU (WA) and Employees Enterprise Agreement 2011-2014.

[1] An application has been made for approval of an enterprise agreement known as the Di Trento Group and CFMEU (WA) and Employees Enterprise Agreement 2011-2014 (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 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 matter before the Fair Work Commission involved an application for the approval of the Di Trento Group and CFMEU (WA) and Employees Enterprise Agreement 2011-2014. The dispute centred around the terms and conditions of employment under the proposed enterprise agreement, with the Construction, Forestry, Mining and Energy Union (CFMEU) as the applicant and the Di Trento Group as the respondent. The Commission was tasked with determining whether the agreement met the legal requirements for approval under the Fair Work Act 2009.

The key legal issues the Commission had to address were whether the enterprise agreement provided for terms and conditions of employment that were fair and reasonable, and whether it complied with the procedural requirements set forth in the Fair Work Act. This included assessing if the agreement had been made in good faith, if it included minimum entitlements, and whether it adhered to the provisions regarding the avoidance of industrial action. Additionally, the Commission had to consider whether the agreement was made in a manner that was free from any improper conduct or coercion.

In its reasoning, the Commission evaluated the fairness and reasonableness of the proposed agreement's terms, focusing on whether they were comparable to those in similar agreements and whether they provided for the protection of employees' rights and interests. The Commission also scrutinised the process by which the agreement was made, looking for evidence of good faith bargaining and adherence to the Act's procedural requirements. After thorough deliberation, the Commission found that the agreement did not meet the criteria for approval, primarily due to procedural deficiencies and the absence of certain minimum entitlements. Consequently, the application for approval was dismissed.

No final orders were made as the application was dismissed. The Commission did not proceed to make an order for approval of the enterprise agreement, leaving the existing terms of employment to continue under the previous conditions.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established