Construction, Forestry, Mining and Energy Union

[2013] FWCA 3702

FAIR WORK COMMISSION

DECISION

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

Construction, Forestry, Mining and Energy Union
(AG2013/6830)

CIVILMECH PTY LTD AND THE CFMEU SUB-DIVISIONAL AND MINOR WORKS ENTERPRISE AGREEMENT 2011-2015

Building, metal and civil construction industries
SENIOR DEPUTY PRESIDENT WATSON	MELBOURNE, 11 JUNE 2013

Application for approval of the Civilmech Pty Ltd and the CFMEU Sub-Divisional and Minor Works Enterprise Agreement 2011-2015.

[1] An application has been made for approval of an enterprise agreement known as the Civilmech Pty Ltd and the CFMEU Sub-Divisional and Minor Works 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 agreement does not contain a flexibility provision in the terms of s.202 of the Act. Pursuant to s.202(4) of the Act, the model flexibility term prescribed by the Fair Work Regulations 2009 1 is taken to be a term of the Agreement.

[4] The agreement does not contain a consultation provision in the terms of s.205 of the Act. Pursuant to s.205(2) of the Act, the model consultation term prescribed by the Fair Work Regulations 2009 2 is taken to be a term of the Agreement.

[5] 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.

[6] The Agreement is approved and, in accordance with s.54, will operate from 18 June 2012. The nominal expiry date of the Agreement is 1 April 2015.

SENIOR DEPUTY PRESIDENT

1 Reg 2.09 and Sch 2.3 of the Fair Work Regulations 2009.

2 Reg 2.09 and Sch 2.3 of the Fair Work Regulations 2009.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The parties in this case were Civilmech Pty Ltd and the Construction, Forestry, Mining and Energy Union (CFMEU). The dispute centred around the approval of the Civilmech Pty Ltd and the CFMEU Sub-Divisional and Minor Works Enterprise Agreement 2011-2015. The Fair Work Commission, in this instance functioning as a court, was the body tasked with reviewing and approving the agreement. The primary legal issue before the court was to determine whether the agreement met all the necessary statutory requirements under the Fair Work Act 2009. This included assessing whether the agreement was free from any unlawful content, was genuinely an enterprise agreement, and had been properly negotiated and agreed upon by the relevant parties.

The court examined the terms of the agreement, the process by which it was negotiated, and the circumstances surrounding its execution. It was crucial to ensure that the agreement did not contain any provisions that could be deemed to be in breach of any relevant legislation. Additionally, the court had to confirm that the agreement was genuinely an enterprise agreement, as opposed to a document that was simply titled as such without meeting the necessary criteria. This involved verifying that the agreement genuinely represented the terms and conditions of employment for the employees covered by the agreement.

Upon review, the court determined that the agreement was free from any unlawful content, was genuinely an enterprise agreement, and had been properly negotiated and agreed upon by the relevant parties. The court found that all the statutory requirements under the Fair Work Act 2009 were met, and as such, approved the agreement. The court's decision was based on a thorough examination of the agreement and the process by which it was negotiated, ensuring that it complied with all necessary legal standards.

The final orders of the court were to approve the Civilmech Pty Ltd and the CFMEU Sub-Divisional and Minor Works Enterprise Agreement 2011-2015, effective from the date of the decision. The agreement was deemed to be a genuine enterprise agreement and was therefore valid and binding on the parties involved.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established