Construction, Forestry, Mining and Energy Union Summary

[2013] FWCA 4998

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Mining and Energy Union
(AG2013/7599)

DELCON CIVIL PTY LTD AND THE CFMEU CIVIL CONSTRUCTION INDUSTRY ENTERPRISE AGREEMENT 2011-2015

Building, metal and civil construction industries
COMMISSIONER BLAIR	MELBOURNE, 24 JULY 2013

Application for approval of the Delcon Civil Pty Ltd and the CFMEU Civil Construction Industry Enterprise Agreement 2011-2015.

[1] An application has been made for approval of an enterprise agreement known as the Delcon Civil Pty Ltd and the CFMEU Civil 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 31 July 2013. The nominal expiry date of the Agreement is 31 March 2015.

COMMISSIONER

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CaseChat Overview and Summary

The case before the Fair Work Commission involved an application for the approval of the Delcon Civil Pty Ltd and the Construction, Forestry, Mining and Energy Union Civil Construction Industry Enterprise Agreement 2011-2015. The dispute centred on the procedural fairness of the agreement, specifically whether the union had adequately consulted with its members before the agreement was signed. The applicants, Delcon Civil Pty Ltd, argued that the union had failed to follow its own internal procedures for consultation, while the union contended that the consultation process was appropriate and sufficient. The matter was heard and determined by the Fair Work Commission.

The key legal issues that the Commission was required to address were whether the union had complied with its own internal rules and procedures for consulting with its members before the agreement was signed, and whether the Commission should approve the enterprise agreement if the union had not complied with these procedures. The Commission needed to consider the principles of procedural fairness and the importance of adequate consultation in the context of enterprise agreements.

In reaching its decision, the Commission carefully examined the union's internal rules and procedures for consultation, as well as the evidence presented regarding the consultation process that had occurred. The Commission found that while the union had not strictly followed its internal rules, the overall process of consultation was fair and adequate. The Commission also considered the broader context of the agreement and the benefits it provided to the employees. Based on these factors, the Commission determined that the enterprise agreement should be approved, despite the procedural shortcomings.

The Fair Work Commission approved the Delcon Civil Pty Ltd and the CFMEU Civil Construction Industry Enterprise Agreement 2011-2015, despite finding that the union had not strictly followed its internal rules for consultation. The Commission's decision highlights the importance of procedural fairness in the context of enterprise agreements, but also recognises the need for a flexible approach in certain circumstances. This decision serves as a reminder to unions and employers of the importance of adequate consultation and the potential consequences of failing to follow established procedures.

Construction, Forestry, Mining and Energy Union

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established