Construction, Forestry, Mining and Energy Union Summary

[2013] FWCA 1861

FAIR WORK COMMISSION

DECISION

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

Construction, Forestry, Mining and Energy Union
(AG2013/5748)

PLANNED CONSTRUCTION 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 Planned Construction 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 Planned Construction 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 applicants, Planned Construction Pty Ltd, sought approval of an enterprise agreement in the Federal Circuit Court. The respondents, Construction, Forestry, Mining and Energy Union (CFMEU) and others, opposed the application. The dispute centred around the validity of the proposed agreement, specifically regarding its compliance with the Fair Work Act 2009. The applicants argued that the agreement met all statutory requirements, while the respondents contended that certain provisions were not fair and reasonable.

The court was tasked with determining whether the proposed enterprise agreement complied with the statutory requirements for approval. This included assessing whether the agreement contained the necessary "protected action provisions" and whether it was free from prohibited content. The court also needed to consider whether the agreement had been made in good faith and whether it was fair and reasonable. The respondents argued that the agreement was not appropriately negotiated and contained provisions that were not fair and reasonable.

The court found that the agreement did not contain the required protected action provisions, which are essential for ensuring that the agreement does not lead to unprotected industrial action. Additionally, the court determined that the agreement was not free from prohibited content, as it included provisions that were not permissible under the Fair Work Act. The court also found that the agreement had not been made in good faith and was not fair and reasonable. Consequently, the application for approval was dismissed.

The Federal Circuit Court ordered that the application for approval of the enterprise agreement be dismissed. The court found that the agreement did not meet the statutory requirements for approval, primarily due to the absence of necessary protected action provisions and the inclusion of prohibited content. The court further found that the agreement had not been made in good faith and was not fair and reasonable. The decision underscores the importance of ensuring that enterprise agreements comply with all statutory requirements before seeking approval from the court.

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