Construction, Forestry, Mining and Energy Union Summary

[2013] FWCA 2701

FAIR WORK COMMISSION

DECISION

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

Construction, Forestry, Mining and Energy Union
(AG2013/6198)

ARMCO BARRIERS PTY LTD AND THE CFMEU BUILDING AND CONSTRUCTION INDUSTRY ENTERPRISE AGREEMENT 2011-2015

Building, metal and civil construction industries
SENIOR DEPUTY PRESIDENT WATSON	MELBOURNE, 3 MAY 2013

Application for approval of the Armco Barriers 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 Armco Barriers 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 type.

[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 10 May 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 involved the Construction, Forestry, Mining and Energy Union (CFMEU) and Armco Barriers Pty Ltd, with the dispute centred on the approval of a particular enterprise agreement. The case was heard in the Fair Work Commission of Australia. The primary issue before the court was whether the enterprise agreement proposed by the parties complied with the relevant provisions of the Fair Work Act 2009. Specifically, the court needed to determine whether the agreement met the requirements for "protected action" under section 233 of the Act, which pertains to the protection of employees' rights to take certain industrial actions.

The court's reasoning was grounded in the statutory framework provided by the Fair Work Act, with particular attention to the procedural and substantive requirements for approving enterprise agreements. The Commission examined whether the agreement was made in good faith and whether it contained the necessary provisions to protect employees' rights to take protected action. The court also considered the process through which the agreement was negotiated and whether it adhered to the procedural requirements set forth in the Act. Ultimately, the Commission found that the agreement did not sufficiently protect the employees' rights to take protected action and therefore did not meet the statutory criteria for approval.

In conclusion, the court ruled against the approval of the enterprise agreement, stating that it did not comply with the necessary provisions of the Fair Work Act. The court did not grant the application for approval of the Armco Barriers Pty Ltd and the CFMEU Building and Construction Industry Enterprise Agreement 2011-2015, thereby upholding the employees' rights to engage in protected industrial actions.

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