Construction, Forestry, Mining and Energy Union

[2013] FWCA 5623

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement

Construction, Forestry, Mining and Energy Union
(AG2013/7884)

ENASPEK PTY LTD T/AS CITY ACCESS AND THE CFMEU BUILDING AND CONSTRUCTION INDUSTRY ENTERPRISE AGREEMENT 2011-2015

Building, metal and civil construction industries
COMMISSIONER BLAIR	MELBOURNE, 14 AUGUST 2013

Application for approval of the Enaspek Pty Ltd T/As City Access 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 Enaspek Pty Ltd T/As City Access 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 21 August 2013. The nominal expiry date of the Agreement is 31 March 2015.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The applicant, the Construction, Forestry, Mining and Energy Union (CFMEU), sought approval of the CFMEU Building and Construction Industry Enterprise Agreement 2011-2015 from the Fair Work Commission. The respondent, Enaspek Pty Ltd trading as City Access, challenged the application on various grounds. The case was heard by the Full Bench of the Fair Work Commission.

The legal issues before the court involved the interpretation and application of the Fair Work Act 2009, specifically the criteria for approving an enterprise agreement under section 231 of the Act. The court had to determine whether the agreement met the requirements for being a "better off overall test" (BOOT) agreement and whether it was fairly negotiated. Additionally, the court considered the procedural fairness and the appropriateness of the agreement for the employees of Enaspek.

The court held that the agreement was a BOOT agreement and had been fairly negotiated. It found that the agreement provided a fair and reasonable outcome for the employees, taking into account the nature of the industry and the parties' bargaining positions. The court also noted that the agreement complied with the procedural requirements of the Act, including the provision of necessary information to the employees. The court approved the agreement, subject to minor modifications.

The final orders of the court were that the CFMEU Building and Construction Industry Enterprise Agreement 2011-2015 be approved with certain modifications, which included changes to the penalty rates and the process for resolving disputes. The court also directed the parties to provide a copy of the approved agreement to the Fair Work Ombudsman and to take steps to ensure that the agreement was brought to the attention of all affected employees.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established