Construction, Forestry, Mining and Energy Union Summary

[2013] FWCA 3554

FAIR WORK COMMISSION

DECISION

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

Construction, Forestry, Mining and Energy Union
(AG2013/6734)

FERNANDEZ, ERNESTO ISMAEL T/AS FERNANDEZ CONTRACTING AUSTRALIA AND THE CFMEU BUILDING AND CONSTRUCTION INDUSTRY ENTERPRISE AGREEMENT 2011-2015

Building, metal and civil construction industries
SENIOR DEPUTY PRESIDENT WATSON	MELBOURNE, 5 JUNE 2013

Application for approval of the Fernandez, Ernesto Ismael T/As Fernandez Contracting Australia 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 Fernandez, Ernesto Ismael T/As Fernandez Contracting Australia 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 12 June 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

In the case, Fernandez, Ernesto Ismael T/As Fernandez Contracting Australia and the Construction, Forestry, Mining and Energy Union (CFME) sought approval for the CFMEU Building and Construction Industry Enterprise Agreement 2011-2015. The application was heard by the Fair Work Commission, the body responsible for overseeing the agreement's approval. The dispute centred on whether the agreement met the statutory requirements for registration and whether it adhered to the relevant provisions of the Fair Work Act 2009.

The central legal issue was whether the agreement fulfilled the criteria for registration under section 174 of the Act, including whether it had been fairly and genuinely negotiated and whether it contained the necessary minimum terms and conditions. The court also needed to determine if the agreement complied with the provisions of section 235 of the Act, which addresses the avoidance of industrial action and ensures that the agreement was not detrimental to the broader public interest.

The Fair Work Commission found that the agreement was fairly and genuinely negotiated and contained the necessary minimum terms and conditions. It was also determined that the agreement did not contravene any provisions of the Act and was not detrimental to the public interest. The court highlighted the importance of balancing the rights of employers and employees while promoting industrial harmony. Consequently, the Commission approved the CFMEU Building and Construction Industry Enterprise Agreement 2011-2015, providing legal recognition and enforcement to the agreement.

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