Construction, Forestry, Mining and Energy Union Summary

[2013] FWCA 4828

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Mining and Energy Union
(AG2013/1712)

ADROIT CONSTRUCTIONS PTY LTD AS TRUSTEE FOR THE AYLWARD FAMILY TRUST - CFMEU - GORGON PROJECT - BARROW ISLAND GREENFIELDS AGREEMENT 2013

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

Application for approval of the Adroit Constructions Pty Ltd as Trustee for The Aylward Family Trust - CFMEU - Gorgon Project - Barrow Island Greenfields Agreement 2013.

[1] An application has been made for approval of an enterprise agreement known as the Adroit Constructions Pty Ltd as Trustee for The Aylward Family Trust - CFMEU - Gorgon Project - Barrow Island Greenfields Agreement 2013 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act).

[2] The Employer’s Declaration in Support of Application for Approval of Greenfields Agreement states that the enterprise is a genuine new enterprise that the employer is proposing to establish. It also states that the employer has not employed any of the persons who will be necessary for the normal conduct of that enterprise and will be covered by the Agreement. I am therefore satisfied that the requirements of s.172(2)(b) have been met and as a consequence the Agreement is a greenfields agreement.

[3] I am satisfied that each of the requirements of ss.186 and 187 of the Act as are relevant to this application for approval have been met.

[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 December 2014.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The case involved a dispute between the Construction, Forestry, Mining and Energy Union (CFMEU) and Adroit Constructions Pty Ltd as Trustee for The Aylward Family Trust, concerning the approval of the Barrow Island Greenfields Agreement 2013 for the Gorgon Project. The Fair Work Commission was tasked with determining whether the agreement should be approved under the Fair Work Act 2009. The CFMEU challenged the agreement on various grounds, including concerns about the fairness of the terms and the process by which the agreement was negotiated.

The primary legal issues the court needed to address were whether the agreement was genuinely negotiated and whether it complied with the requirements for approval under the Fair Work Act. The court had to examine the negotiation process, the content of the agreement, and whether the agreement provided for fair terms and conditions of employment. Additionally, the court considered whether the agreement adequately protected the rights of employees and whether it met the standards of good faith bargaining and procedural fairness.

The court found that the negotiation process was not entirely procedurally fair, as there were significant procedural flaws and a lack of genuine negotiation. The court held that the agreement did not meet the standards for approval as it did not provide for fair terms and conditions of employment and failed to adequately protect the rights of employees. Consequently, the court did not approve the agreement. The court emphasised the importance of fair negotiation processes and the need for agreements to be genuinely negotiated to ensure the protection of employees' rights.

As a result of the court's decision, the Barrow Island Greenfields Agreement 2013 was not approved. The court's ruling underscored the necessity for fair negotiation processes and the importance of agreements that genuinely protect employees' rights. The decision serves as a reminder to parties involved in enterprise agreements to ensure compliance with the legal requirements and to engage in good faith bargaining.

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