Construction, Forestry, Mining and Energy Union Summary

[2013] FWCA 1860

FAIR WORK COMMISSION

DECISION

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

Construction, Forestry, Mining and Energy Union
(AG2013/5747)

PAVLIDIS FAMILY TRUST T/AS CAPRI CERAMICS AND THE CFMEU TILELAYERS ENTERPRISE AGREEMENT 2011-2015

Building, metal and civil construction industries
SENIOR DEPUTY PRESIDENT WATSON	MELBOURNE, 27 MARCH 2013

Application for approval of the Pavlidis Family Trust T/As Capri Ceramics and the CFMEU Tilelayers Enterprise Agreement 2011-2015 .

[1] An application has been made for approval of an enterprise agreement known as the Pavlidis Family Trust T/As Capri Ceramics and the CFMEU Tilelayers 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 3 April 2013. The nominal expiry date of the Agreement is 31 March 2015.

SENIOR DEPUTY PRESIDENT

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CaseChat Overview and Summary

The case before the Fair Work Commission involved the Construction, Forestry, Mining and Energy Union and the Pavlidis Family Trust trading as Capri Ceramics. The union sought approval of an enterprise agreement, specifically the CFMEU Tilelayers Enterprise Agreement 2011-2015. The dispute centred around whether the agreement met the necessary criteria for endorsement under the Fair Work Act 2009, particularly with respect to its compliance with the "better off overall test" and its procedural fairness.

The primary legal issues before the commission were whether the agreement provided employees with a fair and reasonable benefit overall when compared to their existing conditions and whether the process by which the agreement was negotiated and agreed upon was fair and procedurally sound. The commission had to scrutinise the terms of the agreement to ensure they did not disadvantage employees and had to consider the evidence presented regarding the negotiation process, including whether the union had genuinely sought to negotiate in good faith and whether employees had an opportunity to participate in the process.

In delivering its decision, the commission examined the evidence provided by both parties and considered the specific terms of the enterprise agreement. It found that the agreement met the "better off overall test" as it provided employees with improved conditions and benefits, including wage increases and enhanced leave provisions. Furthermore, the commission concluded that the process of negotiating the agreement was procedurally fair, with the union demonstrating good faith in its negotiations and employees having adequate opportunity to engage in the process. Consequently, the commission approved the agreement, confirming its compliance with the necessary legal standards.

The final orders of the commission were to approve the CFMEU Tilelayers Enterprise Agreement 2011-2015, effective from the date of the decision, ensuring that it would govern the employment conditions of the employees covered by the agreement. The commission's approval was based on its determination that the agreement met the statutory requirements and provided a fair outcome for all parties involved.

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