Construction, Forestry, Mining and Energy Union

[2013] FWCA 5156

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Mining and Energy Union
(AG2013/7706)

AUS SCAPES PTY LTD AND THE CFMEU BUILDING AND CONSTRUCTION INDUSTRY ENTERPRISE AGREEMENT 2011-2015

Building, metal and civil construction industries
COMMISSIONER BLAIR	MELBOURNE, 30 JULY 2013

Application for approval of the Aus Scapes Pty Ltd 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 Aus Scapes Pty Ltd 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 6 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 case before the Fair Work Commission involved an application for the approval of the Aus Scapes Pty Ltd and the Construction, Forestry, Mining and Energy Union Building and Construction Industry Enterprise Agreement 2011-2015. The applicant, Aus Scapes Pty Ltd, sought the commission’s approval of the enterprise agreement, which had been negotiated between the parties and contained provisions relating to the employment of workers in the building and construction industry. The dispute centred on whether the agreement met the legal requirements for approval under the Fair Work Act 2009.

The legal issues the commission was required to decide included whether the agreement was genuinely negotiated, whether it contained the minimum terms and conditions of employment as prescribed by law, and whether it complied with the procedural requirements for enterprise agreements. Specifically, the commission had to consider whether the agreement had been negotiated in good faith and whether it provided for fair and reasonable terms and conditions of employment. Additionally, the commission had to determine whether the agreement met the disclosure and consultation requirements set out in the Fair Work Act.

In reaching its decision, the commission examined the evidence provided by both parties and considered the provisions of the Fair Work Act and relevant case law. The commission found that the agreement had been genuinely negotiated between the parties and contained the minimum terms and conditions of employment. The commission also determined that the agreement complied with the procedural requirements for enterprise agreements, including the disclosure and consultation requirements. As a result, the commission approved the Aus Scapes Pty Ltd and the Construction, Forestry, Mining and Energy Union Building and Construction Industry Enterprise Agreement 2011-2015.

The commission’s decision was that the agreement met the legal requirements for approval under the Fair Work Act and was therefore approved. The agreement was registered with the Fair Work Commission, and the parties were bound by its terms and conditions. The decision provides guidance to employers and unions on the requirements for negotiating and approving enterprise agreements and reinforces the importance of genuine negotiation and compliance with legal requirements in the enterprise agreement process.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established