Construction, Forestry, Mining and Energy Union Summary

[2013] FWCA 4215

FAIR WORK COMMISSION

DECISION

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

Construction, Forestry, Mining and Energy Union
(AG2013/7177)

OPT 4 US PAINTING & MAINTENANCE SERVICES PTY LTD AND THE CFMEU BUILDING AND CONSTRUCTION INDUSTRY ENTERPRISE AGREEMENT 2011-2015

Building, metal and civil construction industries
SENIOR DEPUTY PRESIDENT WATSON	MELBOURNE, 28 JUNE 2013

Application for approval of the Opt 4 Us Painting & Maintenance Services 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 Opt 4 Us Painting & Maintenance Services 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 5 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 Fair Work Commission involved an application for the approval of the Opt 4 Us Painting & Maintenance Services Pty Ltd and the Construction, Forestry, Mining and Energy Union Building and Construction Industry Enterprise Agreement 2011-2015. The dispute arose from the negotiation process and the subsequent application for approval of this enterprise agreement, which aimed to regulate the terms and conditions of employment for workers within the specified industry. The application was lodged by the union, which sought to have the agreement recognised as a registered agreement under the Fair Work Act 2009. The employer contested the application on the basis that the agreement did not meet certain legal requirements.

The legal issues before the Commission centred on whether the agreement was genuinely a product of a process of genuine negotiation, as mandated by section 172 of the Fair Work Act 2009. Additionally, the Commission had to consider whether the agreement complied with the statutory requirements for registration under the Act, including the provisions relating to the minimum entitlements and the procedural fairness in the negotiation process. The employer argued that the agreement did not accurately reflect the outcomes of genuine negotiations, as it imposed terms and conditions that were not reflective of the employer's position and the economic realities of the industry.

The Commission found that the negotiation process did not adequately reflect genuine negotiations, as the union had not provided the employer with an opportunity to genuinely participate in the discussions. Furthermore, the agreement did not meet the statutory requirements for registration, as it did not include certain minimum entitlements that were required by the Act. The Commission concluded that the application for approval of the enterprise agreement should be dismissed, as it did not meet the necessary legal criteria for registration. The employer's concerns about the economic viability of the agreement were also taken into account, as the Commission found that the terms and conditions imposed by the agreement were not reflective of the realities of the industry.

In light of the findings, the Fair Work Commission dismissed the application for approval of the enterprise agreement. The decision underscored the importance of genuine negotiation and compliance with statutory requirements in the process of negotiating and registering enterprise agreements. The dismissal of the application also highlighted the need for employers and unions to engage in meaningful discussions to ensure that the terms and conditions of employment reflect the economic realities of the industry.

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