Construction, Forestry, Mining and Energy Union

[2013] FWCA 1803

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Mining and Energy Union
(AG2013/5673)

TK HAULAGE PTY LTD T/AS PK DEMOLITION AND THE CFMEU DEMOLITION ENTERPRISE AGREEMENT 2011-2015

Building, metal and civil construction industries
SENIOR DEPUTY PRESIDENT WATSON	MELBOURNE, 22 MARCH 2013

Application for approval of the TK Haulage Pty Ltd T/As PK Demolition and the CFMEU Demolition Enterprise Agreement 2011-2015.

[1] An application has been made for approval of an enterprise agreement known as the TK Haulage Pty Ltd T/As PK Demolition and the CFMEU Demolition 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 29 March 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

In the Fair Work Commission, the Construction, Forestry, Mining and Energy Union (CFMEU) lodged an application for approval of the TK Haulage Pty Ltd T/As PK Demolition and the CFMEU Demolition Enterprise Agreement 2011-2015. TK Haulage Pty Ltd, through its representative, opposed the application on several grounds, including the contention that the agreement contained terms that were not suitable for small business and were contrary to the objectives of the Fair Work Act 2009 (Cth). The legal issues before the Commission were whether the agreement met the criteria for approval under section 234 of the Act and if it contained any terms that would be unsuitable for small business employees.

The Commission considered the nature of the enterprise and the specific provisions of the agreement. It determined that the enterprise was not a small business as defined by the Act, and thus the small business exemption provisions were not applicable. The Commission also assessed the terms of the agreement and found that, while some provisions were stringent, they were not contrary to the objectives of the Act. The Commission concluded that the agreement, as a whole, was fair and balanced and met the criteria for approval. Accordingly, the application for approval was granted.

The final orders of the Commission were that the TK Haulage Pty Ltd T/As PK Demolition and the CFMEU Demolition Enterprise Agreement 2011-2015 be approved as a registered agreement under section 171 of the Fair Work Act 2009 (Cth), effective from the date of the Commission's decision. The decision also included provisions for the agreement to be published and made available to the employees and employers covered by the agreement.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established