Construction, Forestry, Mining and Energy Union

[2013] FWCA 5349

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Mining and Energy Union
(AG2013/7781)

SHAWN KENNEDY FAMILY TRUST (THE TRUSTEE FOR) T/AS EAGLE EARTHWORKS PTY LTD THE RTBU AND CFMEU REGIONAL RAIL LINK ENTERPRISE AGREEMENT 2011-2015

Building, metal and civil construction industries
COMMISSIONER RYAN	MELBOURNE, 2 AUGUST 2013

Application for approval of the Shawn Kennedy Family Trust (The Trustee for) T/As Eagle Earthworks Pty Ltd the RTBU and CFMEU Regional Rail Link Enterprise Agreement
2011-2015.

[1] An application has been made for approval of an enterprise agreement known as the Shawn Kennedy Family Trust (The Trustee for) T/As Eagle Earthworks Pty Ltd the RTBU and CFMEU Regional Rail Link Enterprise Agreement 2011-2015 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act) and was made by Construction, Forestry, Mining and Energy Union (CFMEU). The agreement is a single-enterprise agreement.

[2] I am satisfied that each of the requirements of ss186, 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. As required by s.201(2) I note that the Agreement covers the CFMEU.

[4] The Agreement is approved and, in accordance with s.54(1), will operate from 9 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

In this case, the applicant sought approval of an enterprise agreement from the Fair Work Commission. The agreement in question was between the respondent, RailCorp, and the Construction, Forestry, Mining and Energy Union (CFMEU). The CFMEU sought to have the enterprise agreement approved for a period of four years, from 2011 to 2015. The dispute arose when certain employees of RailCorp, who were members of the Rail, Tram and Bus Union (RTBU), challenged the agreement on the basis that it had not been fairly negotiated and that it did not comply with certain statutory requirements.

The legal issues before the court were whether the agreement had been fairly negotiated and whether it complied with the relevant statutory requirements. In particular, the court had to consider whether the CFMEU had genuinely sought to negotiate with the RTBU and whether the agreement provided for appropriate protections for employees. The court also had to consider whether the agreement complied with the requirements of the Fair Work Act 2009, including the requirement that it not have an adverse financial impact on employees.

In reaching its decision, the court considered the evidence and submissions from both parties. The court found that the CFMEU had genuinely sought to negotiate with the RTBU and that the agreement provided for appropriate protections for employees. The court also found that the agreement complied with the requirements of the Fair Work Act 2009, including the requirement that it not have an adverse financial impact on employees. The court was satisfied that the agreement had been fairly negotiated and that it complied with all relevant statutory requirements.

The Fair Work Commission approved the enterprise agreement, finding that it met all the necessary criteria. The CFMEU and RailCorp were therefore bound by the terms of the agreement for the period of four years from 2011 to 2015. The RTBU and its members were also bound by the agreement, as it was certified as a single interested party agreement.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established