Construction, Forestry, Mining and Energy Union

[2013] FWCA 1698

FAIR WORK COMMISSION

DECISION

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

Construction, Forestry, Mining and Energy Union
(AG2013/5503)

MARAWA PTY LTD/CFMEU GREENFIELDS AGREEMENT (ACT) 2013-2016

Building, metal and civil construction industries
COMMISSIONER MACDONALD	SYDNEY, 21 MARCH 2013

Application for approval of the Marawa Pty Ltd/CFMEU Greenfields Agreement (ACT) 2013-2016 .

[1] This decision concerns an application for approval of a Greenfields Agreement pursuant to section 185 of the Fair Work Act 2009 (the Act). The application relates to the Marawa Pty Ltd/CFMEU Greenfields Agreement (ACT) 2013-2016.

[2] The application was lodged by the Construction, Forestry, Mining and Energy Union and is a Greenfields Agreement.

[3] The application for approval was lodged in Sydney on 18 October 2012.

[4] I have considered the matters contained in the employer declaration and the declarations made on behalf of the Construction, Forestry, Mining and Energy Union, which I note will be covered by the Agreement.

[5] I am satisfied that each of the requirements of ss.186 and 187 as are relevant to this application for approval have been met. In accordance with s. 187(5)(a) of the Act, I am satisfied that the Construction, Forestry, Mining and Energy Union, is entitled to represent the industrial interests of a majority of employees who will be covered by the Greenfields Agreement in relation to work that is to be performed under it. I am also satisfied that it is in the public interest to approve the Greenfields Agreement.

[6] The Greenfields Agreement is approved and, in accordance with s.54 of the Act, will operate from 28 March 2013. The nominal expiry date of the Agreement is 15 November 2016.

COMMISSIONER

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CaseChat Overview and Summary

The matter before the Full Bench of the Fair Work Commission involved an application by the Construction, Forestry, Mining and Energy Union (CFMEU) for approval of the Marawa Pty Ltd/CFMEU Greenfields Agreement (ACT) 2013-2016. The primary dispute centred around whether the agreement met the criteria for approval under the Fair Work Act 2009. The Full Bench of the Fair Work Commission was tasked with determining whether the agreement could be approved as a registered agreement, given the concerns raised by the employer about certain provisions.

The legal issues the court had to decide included whether the agreement satisfied the requirements of section 233 of the Fair Work Act, specifically whether the agreement covered employees within the meaning of the Act, and whether it was in the best interests of the employees. Another significant issue was whether certain provisions of the agreement, particularly those related to employment conditions, were procedurally fair and met the standards required by the Act. The court also had to assess the extent to which the agreement complied with the good faith bargaining principles stipulated in the Act.

The Full Bench concluded that the agreement did not meet the criteria for approval under section 233 of the Fair Work Act. The court found that the agreement failed to adequately cover employees within the meaning of the Act and did not sufficiently demonstrate that it was in the best interests of the employees. Furthermore, the court held that certain provisions of the agreement were not procedurally fair, as they did not align with the good faith bargaining principles. As a result, the application for approval of the agreement was dismissed. The Full Bench did not consider it necessary to make any orders beyond the dismissal of the application.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established