Construction, Forestry, Mining and Energy Union Summary

[2013] FWCA 1865

FAIR WORK COMMISSION

DECISION

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

Construction, Forestry, Mining and Energy Union
(AG2013/5752)

JDC PROJECT MANAGEMENT (VIC) PTY LTD AND THE CFMEU BUILDING AND CONSTRUCTION INDUSTRY ENTERPRISE AGREEMENT 2011-2015

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

Application for approval of the JDC Project Management (Vic) 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 JDC Project Management (Vic) 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.

[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

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Construction, Forestry, Mining and Energy Union (CFMEU) filed an application seeking approval of the JDC Project Management (Vic) Pty Ltd and the CFMEU Building and Construction Industry Enterprise Agreement 2011-2015. The application was heard by the Fair Work Commission (FWC) which has the authority to approve enterprise agreements under the Fair Work Act 2009 (Cth). The nature of the dispute centred on whether the enterprise agreement met the requirements for approval under the Act.

The primary legal issue before the FWC was whether the enterprise agreement complied with the provisions of the Fair Work Act, particularly section 230, which sets out the criteria for the approval of an enterprise agreement. The FWC had to determine if the agreement was genuinely negotiated, if it contained the necessary minimum terms and conditions, and if it was free from any prohibited content. Additionally, the FWC needed to consider if the agreement adhered to procedural fairness, ensuring it was properly presented and negotiated.

The FWC found that the agreement did not meet the statutory requirements for approval. The Commission concluded that the agreement failed to genuinely reflect the negotiation process as it was not independently drafted and contained terms that were not genuinely the product of the negotiation process. The FWC also found that the agreement did not contain all the required minimum terms and conditions and contained provisions that were contrary to public policy. Consequently, the application for approval was dismissed.

As a result of the FWC's decision, the application for approval of the enterprise agreement was dismissed, and the agreement was not approved. The FWC's determination underscores the importance of ensuring that enterprise agreements are genuinely negotiated and contain all the necessary minimum terms and conditions, free from prohibited content.

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