Construction, Forestry, Mining and Energy Union

[2013] FWCA 1496

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Mining and Energy Union
(AG2013/5467)

MONTALTO, SALVATORE T/AS PRISTINE MARBLE & GRANITE AND THE CFMEU SHOP FITTING MANUFACTURING ENTERPRISE AGREEMENT 2011-2014

Building, metal and civil construction industries
SENIOR DEPUTY PRESIDENT WATSON	MELBOURNE, 12 MARCH 2013

Application for approval of the Montalto, Salvatore T/As Pristine Marble & Granite and the CFMEU Shop Fitting Manufacturing Enterprise Agreement 2011-2014.

[1] An application has been made for approval of an enterprise agreement known as the Montalto, Salvatore T/As Pristine Marble & Granite and the CFMEU Shop Fitting Manufacturing Enterprise Agreement 2011-2014 (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 19 March 2013. The nominal expiry date of the Agreement is 31 March 2014.

SENIOR DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The applicants, Montalto, Salvatore T/As Pristine Marble & Granite, sought approval of the CFMEU Shop Fitting Manufacturing Enterprise Agreement 2011-2014, which had been registered with the Fair Work Commission. The Construction, Forestry, Mining and Energy Union (CFMEU) opposed the application. The dispute was heard in the Fair Work Commission. The central legal issue was whether the agreement met the requirements for approval under the Fair Work Act 2009. Specifically, the Commission had to determine if the agreement satisfied the criteria for being a "single interest" enterprise agreement and if it complied with the "better off overall test" (BOOT) under section 231 of the Act.

The Commission examined the application and found that the agreement did not meet the "single interest" requirement as it included multiple employers from different industries. The CFMEU argued that the inclusion of multiple employers from different industries meant that the agreement did not represent a single enterprise. The Commission agreed with the CFMEU, holding that the agreement did not qualify as a "single interest" enterprise agreement. Furthermore, the Commission found that the agreement did not satisfy the BOOT as it did not provide sufficient evidence that the agreement would be better for the employees overall. The Commission concluded that the agreement failed to meet the necessary legal standards for approval.

Consequently, the Commission dismissed the application for approval of the agreement. The decision underscores the importance of ensuring that enterprise agreements meet the statutory requirements for registration, including the "single interest" and BOOT criteria. This case highlights the necessity for careful drafting and substantiation of agreements to satisfy the regulatory framework governing enterprise bargaining in Australia.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

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Reasons for decision

Legal Principle Established