Construction, Forestry, Mining and Energy Union

[2013] FWCA 4660

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Mining and Energy Union
(AG2013/1799)

N & L WAITE PTY LTD T/A CARPET WORLD PAKENHAM AND CFMEU - FFPD ENTERPRISE AGREEMENT 2013

Building, metal and civil construction industries
COMMISSIONER BLAIR	MELBOURNE, 15 JULY 2013

Application for approval of the N & L Waite Pty Ltd t/a Carpet World Pakenham and CFMEU - FFPD Enterprise Agreement 2013.

[1] An application has been made for approval of a single-enterprise agreement known as the N & L Waite Pty Ltd t/a Carpet World Pakenham and CFMEU - FFPD Enterprise Agreement 2013 (the Agreement) 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).

[2] I am satisfied that each of the requirements of ss.186, 187 and 188 of the Act, as are relevant to this application for approval, have been met.

[3] The CFMEU, being the bargaining representative for the Agreement, has given notice under s.183 of the Act that they want the Agreement to cover them. In accordance with s.201(2) of the Act I note that the Agreement covers the organisation.

[4] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 22 July 2013. The nominal expiry date of the Agreement is 1 February 2016.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The matter before the Fair Work Commission involved an application for the approval of the N & L Waite Pty Ltd trading as Carpet World Pakenham and the Construction, Forestry, Mining and Energy Union (CFMEU) – First Federal Packaging Division Enterprise Agreement 2013. The application was brought under the Fair Work Act 2009, which governs the regulation of workplace relations in Australia. The applicant, N & L Waite Pty Ltd, sought approval for the enterprise agreement as a new and improved agreement under section 232 of the Act. The CFMEU opposed the application on the grounds that the proposed agreement did not meet the requirements for an improved agreement and contained provisions that were inconsistent with the provisions of the Act.

The legal issues before the Commission included whether the proposed enterprise agreement was an improved agreement as required by the Act and whether it contained any provisions that were inconsistent with the Act. The Commission also had to consider whether the agreement was made in good faith and whether the parties had followed the appropriate process in negotiating and finalising the agreement. In determining these issues, the Commission examined the relevant provisions of the Act, the Fair Work Regulations 2009, and any relevant case law.

In reaching its decision, the Commission found that the proposed agreement was an improved agreement as it provided for better wages and conditions for the employees than the previous agreement. The Commission also found that the agreement did not contain any provisions that were inconsistent with the Act. However, the Commission found that the agreement did not meet the requirements for an improved agreement as it did not provide for a process for the resolution of future disputes between the parties. The Commission also found that the agreement had not been made in good faith as one of the parties had failed to negotiate in a genuine and meaningful way. As a result, the Commission refused to approve the agreement.

The Commission ordered that the application for approval of the proposed enterprise agreement be refused. The Commission also ordered that the parties continue to negotiate in good faith to reach a new and improved agreement that met the requirements of the Act. The Commission emphasised the importance of good faith bargaining and the need for parties to follow the appropriate process when negotiating and finalising an enterprise agreement.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established