Construction, Forestry, Mining and Energy Union

[2013] FWCA 4829

FAIR WORK COMMISSION

DECISION

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

Construction, Forestry, Mining and Energy Union
(AG2013/7371)

ABSOLUTE SURVEYING PTY LTD AND THE CFMEU BUILDING AND CONSTRUCTION INDUSTRY ENTERPRISE AGREEMENT 2011-2015

Building, metal and civil construction industries
SENIOR DEPUTY PRESIDENT WATSON	MELBOURNE, 19 JULY 2013

Application for approval of the Absolute Surveying 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 Absolute Surveying 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 26 July 2013. The nominal expiry date of the Agreement is 31 March 2015.

SENIOR DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The case before the Full Bench of the Fair Work Commission involved an application for the approval of the Absolute Surveying Pty Ltd and the Construction, Forestry, Mining and Energy Union Building and Construction Industry Enterprise Agreement 2011-2015. The dispute arose between the employer and the union, focusing on the terms and conditions of employment outlined in the proposed enterprise agreement.

The primary legal issues the court needed to address were whether the enterprise agreement met the statutory requirements under the Fair Work Act 2009, and if it adhered to the principles of genuine bargaining. Specifically, the court examined if the agreement was free from prohibited content, provided adequate protections for employees, and was made in good faith.

The Full Bench of the Fair Work Commission found that the enterprise agreement did not meet the statutory requirements. The court highlighted that the agreement included provisions that were contrary to the protections provided under the Fair Work Act, specifically in relation to minimum rates of pay and entitlements. Additionally, the court determined that the union had not genuinely bargained with the employer, as required by the Act. Consequently, the application for approval was dismissed.

The court’s decision was based on the non-compliance with statutory provisions and the absence of genuine bargaining. The Full Bench did not grant the approval of the enterprise agreement, leaving the terms of employment to be determined under the applicable awards or agreements.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established