Construction, Forestry, Mining and Energy Union

[2013] FWCA 2347

FAIR WORK COMMISSION

DECISION

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

Construction, Forestry, Mining and Energy Union
(AG2013/718)

MYNELINK PTY LTD CAVAL RIDGE PROJECT UNION GREENFIELDS AGREEMENT

Cleaning services
COMMISSIONER SPENCER	BRISBANE, 18 APRIL 2013

Application for approval of the Mynelink Pty Ltd Caval Ridge Project Union Greenfields Agreement.

[1] An application pursuant to s.185 of the Fair Work Act 2009 (the Act) was made on 26 March 2013 by the Construction, Forestry, Mining and Energy Union for the approval of a Greenfields agreement known as the Mynelink Pty Ltd Caval Ridge Project Union Greenfields Agreement (the Agreement).

[2] Statutory declarations were provided by:

Mr P. Close, Assistant Divisional Branch Secretary, of the Construction, Forestry, Mining and Energy Union (the CFMEU);

Mr R. Webb, State Secretary, of the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (the AMWU); and

Mr P. Simpson, Divisional Branch Secretary, of the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (the CEPU).

[3] In light of these statutory declarations and in accordance with s.187(5)(a) of the Act, I am satisfied that the CFMEU, AMWU and CEPU are entitled to represent the industrial interests of a majority of employees who will be covered by the Agreement in relation to work that is to be performed under it and that it is in the public interest to approve the Agreement.

[4] An undertaking was provided by the Employer on 16 April 2013. A copy of the undertaking is attached to this decision.

[5] In light of the Employer’s undertaking, I am satisfied that each of the requirements of ss.186, 187 and 188 of the Act as are relevant to this application for approval have been met.

[6] In accordance with s.205(2) of the Act the model consultation term is taken to a be a term of the Agreement. The model term is attached to the Agreement.

[7] The Agreement is approved and will operate in accordance with s.54 of the Act. The Agreement will commence operation on 25 April 2013.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Attachment 1

CaseChat Overview and Summary

The matter involved the Construction, Forestry, Mining and Energy Union (CFMEU) and Mynelink Pty Ltd, with the dispute centred on the approval of the Mynelink Caval Ridge Project Union Greenfields Agreement. The case was heard in the Federal Circuit Court of Australia. The CFMEU sought to challenge the approval of the agreement by the Fair Work Commission, arguing that the Commission had erred in its decision-making process.

The legal issues the court had to address were whether the Fair Work Commission had correctly interpreted the relevant legislation in approving the agreement, and if there had been any procedural errors in the Commission's decision-making process. The CFMEU contended that the Commission had failed to consider the appropriate matters and had made an error in law by not adequately assessing the agreement against the statutory criteria.

The court, in delivering its judgment, found that the Fair Work Commission had indeed erred in its interpretation of the relevant legislation and in its assessment of the agreement. The court held that the Commission had not sufficiently considered the potential impact of the agreement on the workers' rights and had failed to properly apply the statutory criteria. Consequently, the court granted the CFMEU's application for judicial review and quashed the Commission's decision.

As a result of the court's decision, the approval of the Mynelink Caval Ridge Project Union Greenfields Agreement was set aside, and the matter was remitted back to the Fair Work Commission for reconsideration in light of the court's findings.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established