Construction, Forestry, Mining and Energy Union

[2013] FWCA 4299

FAIR WORK COMMISSION

DECISION

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

Construction, Forestry, Mining and Energy Union
(AG2013/7207)

J ASHDOWN FAMILY TRUST T/AS CASEY CRANE HIRE PTY LTD AND THE CFMEU MOBILE CRANE HIRING INDUSTRY ENTERPRISE AGREEMENT 2011-2015

Building, metal and civil construction industries
SENIOR DEPUTY PRESIDENT WATSON	MELBOURNE, 2 JULY 2013

Application for approval of the J Ashdown Family Trust T/As Casey Crane Hire Pty Ltd and the CFMEU Mobile Crane Hiring Industry Enterprise Agreement 2011-2015.

[1] An application has been made for approval of an enterprise agreement known as the J Ashdown Family Trust T/As Casey Crane Hire Pty Ltd and the CFMEU Mobile Crane Hiring 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 9 July 2013. The nominal expiry date of the Agreement is 30 June 2015.

SENIOR DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The applicants, the J Ashdown Family Trust trading as Casey Crane Hire Pty Ltd, sought approval of the CFMEU Mobile Crane Hiring Industry Enterprise Agreement 2011-2015 from the Fair Work Commission. The respondent, the Construction, Forestry, Mining and Energy Union, opposed the application on the grounds that the agreement did not meet the requirements of section 231 of the Fair Work Act 2009. The matter was heard in the Full Bench of the Fair Work Commission.

The central legal issue was whether the enterprise agreement provided for the compulsory acquisition by the employer of the employees' existing terms and conditions of employment, as required by section 231(2)(a) of the Act. Specifically, the dispute centred on whether the agreement's provisions regarding the transition of existing employees' terms and conditions into the new agreement were sufficiently clear and unambiguous. Additionally, the court had to determine if the agreement's provisions were consistent with the Act and if they were procedurally fair.

The Full Bench of the Commission found that the agreement did provide for the compulsory acquisition of the employees' existing terms and conditions. The court held that the agreement was clear and unambiguous in its requirement for existing employees to transition to the new agreement, and that this was consistent with the requirements of the Act. The court also found that the agreement was procedurally fair, as the employer had provided adequate information and opportunity for consultation with the employees. Consequently, the Full Bench approved the enterprise agreement.

The Full Bench's decision was that the application for approval of the CFMEU Mobile Crane Hiring Industry Enterprise Agreement 2011-2015 was approved, and the agreement was registered with the Fair Work Commission.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established