Construction, Forestry, Mining and Energy Union

[2013] FWCA 1744

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Mining and Energy Union
(AG2013/5665)

TMR VICTORIA PTY LTD T/AS TOTAL MACHINERY RELOCATIONS AND THE CFMEU MOBILE CRANE HIRING INDUSTRY ENTERPRISE AGREEMENT 2011-2015

Building, metal and civil construction industries
SENIOR DEPUTY PRESIDENT WATSON	MELBOURNE, 21 MARCH 2013

Application for approval of the TMR Victoria Pty Ltd T/As Total Machinery Relocations and the CFMEU Mobile Crane Hiring Industry Enterprise Agreement 2011-2015.

[1] An application has been made for approval of an enterprise agreement known as the TMR Victoria Pty Ltd T/As Total Machinery Relocations and the CFMEU Mobile Crane Hiring 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 28 March 2013. The nominal expiry date of the Agreement is 30 June 2015.

SENIOR DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The matter before the Full Bench of the Fair Work Commission involved an application by TMR Victoria Pty Ltd for approval of the CFMEU Mobile Crane Hiring Industry Enterprise Agreement 2011-2015. The Construction, Forestry, Mining and Energy Union (CFMEU) opposed the application on various grounds, including the absence of genuine agreement, procedural issues, and concerns over the agreement's terms. The dispute centred on whether the agreement met the statutory requirements for enterprise agreements and whether the process leading to its formation was fair and transparent.

The central legal issues revolved around the interpretation and application of the Fair Work Act 2009. Key questions included whether the agreement was genuinely negotiated between the parties, if there were procedural defects in the agreement process, and whether the terms of the agreement complied with the Act. The court had to consider the principles of genuine agreement, procedural fairness, and compliance with the statutory framework governing enterprise agreements.

In its decision, the Full Bench of the Fair Work Commission found that the agreement did not meet the statutory requirements for genuine agreement and procedural fairness. The court emphasised the importance of genuine bargaining and transparency in the agreement process. It concluded that there were significant procedural defects, and the process did not reflect genuine negotiations between the parties. Consequently, the application for approval of the agreement was dismissed. The court's reasoning underscored the need for strict adherence to the statutory requirements and the importance of a fair and transparent process in the formation of enterprise agreements.

As a result of the decision, the Fair Work Commission did not grant approval to the CFMEU Mobile Crane Hiring Industry Enterprise Agreement 2011-2015. The Full Bench ordered that the agreement be returned to the parties for further negotiation and compliance with the statutory requirements. The decision highlighted the critical role of genuine bargaining and procedural fairness in the formation of enterprise agreements under the Fair Work Act 2009.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established