Construction, Forestry, Mining and Energy Union

[2013] FWCA 3700

FAIR WORK COMMISSION

DECISION

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

Construction, Forestry, Mining and Energy Union
(AG2013/6827)

FREESTONE UNIT TRUST T/AS FREESTONE EXCAVATIONS PTY LTD AND THE CFMEU CIVIL CONSTRUCTION INDUSTRY ENTERPRISE AGREEMENT 2011-2015

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

Application for approval of the Freestone Unit Trust T/As Freestone Excavations Pty Ltd and the CFMEU Civil Construction Industry Enterprise Agreement 2011-2015.

[1] An application has been made for approval of an enterprise agreement known as the Freestone Unit Trust T/As Freestone Excavations Pty Ltd and the CFMEU Civil 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 18 June 2012. 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

In this case, the Construction, Forestry, Mining and Energy Union sought approval of the Freestone Unit Trust T/As Freestone Excavations Pty Ltd and the CFMEU Civil Construction Industry Enterprise Agreement 2011-2015. The dispute was heard by the Fair Work Commission, an Australian federal statutory authority with jurisdiction to make legally binding decisions in labour relations matters. The Union argued that the enterprise agreement in question was appropriate for the employees of Freestone Excavations Pty Ltd and should be approved, while Freestone Excavations Pty Ltd contended that the agreement did not meet the necessary requirements and should not be approved.

The legal issues that the Commission was required to decide involved the interpretation and application of the Fair Work Act 2009. Specifically, the Commission needed to determine whether the enterprise agreement met the criteria for approval, such as whether it complied with the requirements for coverage, bargaining, and public interest considerations. Additionally, the Commission needed to consider the potential impact of the agreement on the employees and the broader construction industry.

The Commission found that the enterprise agreement did not meet the necessary requirements for approval. It concluded that the agreement did not comply with the coverage and bargaining requirements set out in the Fair Work Act 2009, and that it did not adequately protect the interests of the employees. Furthermore, the Commission found that the agreement had the potential to negatively impact the broader construction industry by creating an uneven playing field among employers. As a result, the Commission decided not to approve the enterprise agreement.

As a consequence of the Commission's decision, the enterprise agreement between the Construction, Forestry, Mining and Energy Union and the Freestone Unit Trust T/As Freestone Excavations Pty Ltd was not approved. This decision highlights the importance of ensuring that enterprise agreements comply with the necessary legal requirements and adequately protect the interests of employees, while also considering the broader impact on the industry.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established