Construction, Forestry, Mining and Energy Union

[2013] FWCA 1505

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Mining and Energy Union
(AG2013/5294)

ARAYA, CRISTIAN EDUARDO T/AS VERTICAL ACCESS SOLUTIONS AND THE CFMEU BUILDING AND CONSTRUCTION INDUSTRY ENTERPRISE AGREEMENT 2011-2015

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

Application for approval of the Araya, Cristian Eduardo T/As Vertical Access Solutions 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 Araya, Cristian Eduardo T/As Vertical Access Solutions 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 19 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

The case before the Full Bench of the Fair Work Commission involved an application for the approval of the Araya, Cristian Eduardo T/As Vertical Access Solutions and the CFMEU Building and Construction Industry Enterprise Agreement 2011-2015. The dispute centred around the procedural fairness and the merits of the enterprise agreement as proposed by the parties. The court was required to determine whether the agreement was appropriately negotiated and whether the process leading to its formulation was fair.

The legal issues that the court addressed were primarily procedural, focusing on the negotiation process and the fairness of the enterprise agreement itself. Key points included whether the agreement was genuinely negotiated between the employer and the union, and whether the employer had genuinely attempted to negotiate with the union. Additionally, the court examined the fairness of the agreement in terms of its compliance with statutory requirements and its reasonableness in the context of the industry.

The court examined the evidence presented and found that the negotiation process was flawed due to the employer's failure to genuinely negotiate with the union. The employer had instead imposed terms unilaterally, which was deemed unfair and in breach of the statutory requirements for enterprise agreements. Consequently, the court determined that the agreement did not meet the necessary standards of procedural fairness and genuine negotiation. As a result, the application for approval of the enterprise agreement was dismissed.

No further orders were made by the court beyond the dismissal of the application for approval of the enterprise agreement. The decision underscored the importance of genuine negotiation and procedural fairness in the formation of enterprise agreements within the building and construction industry.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established