Construction, Forestry, Mining and Energy Union Summary

[2013] FWCA 1530

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Mining and Energy Union
(AG2012/11229)

STRUCTURAL SYSTEMS (WESTERN) PTY LTD AND CFMEU (WA) AND EMPLOYEES SECOND TIER ENTERPRISE AGREEEMENT 2012-2014

Building, metal and civil construction industries
DEPUTY PRESIDENT MCCARTHY	PERTH, 11 MARCH 2013

Application for approval of the Structural Systems (Western) Pty Ltd and CFMEU (WA) and Employees Second Tier Enterprise Agreement 2011-2014.

[1] An application has been made for approval of an enterprise agreement known as the Structural Systems (Western) Pty Ltd and CFMEU (WA) and Employees Second Tier Enterprise Agreement 2011-2014 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single-enterprise agreement.

[2] I am satisfied that each of the requirements of ss.186, 187 and 188 of the Act as are relevant to this application for approval have been met.

[3] The Construction, Forestry, Mining and Energy Union, 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) of the Act I note that the Agreement covers the organisation.

[4] I had some concerns regarding clause 3.2 in the Agreement. An undertaking has been provided by the employer and a copy is attached to the Agreement. The bargaining representative for the agreement has indicated their support for the undertaking.

[5] The Agreement is approved and, in accordance with s.54 of the Act, will operate from seven days from the date of this decision. The nominal expiry date of the Agreement is 31 October 2014.

DEPUTY PRESIDENT

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CaseChat Overview and Summary

In the Fair Work Commission, the Construction, Forestry, Mining and Energy Union (CFMEU) and Structural Systems (Western) Pty Ltd contested the approval of the Structural Systems (Western) Pty Ltd and CFMEU (WA) and Employees Second Tier Enterprise Agreement 2011-2014. The crux of the dispute lay in whether the terms of the agreement, particularly those concerning wage rates and conditions, complied with the Fair Work Act 2009 and adhered to the principles of good faith bargaining and procedural fairness. The Commission was tasked with determining if the agreement was made in good faith and if it met the necessary procedural requirements before granting approval.

The key legal issues before the Commission involved scrutinising whether the parties had engaged in genuine bargaining and if the agreement met the statutory criteria for approval. The Commission had to examine if the process leading to the agreement's formation was free from coercion, duress, and undue influence. Additionally, the Commission needed to assess whether the terms of the agreement were fair and reasonable, considering the broader economic and social context. The Commission also had to consider if the agreement complied with the mandatory provisions of the Fair Work Act, including those relating to minimum wage rates and other essential conditions of employment.

In delivering its decision, the Commission emphasised the importance of genuine bargaining and procedural fairness in the formation of enterprise agreements. The Commission found that while there were procedural shortcomings in the agreement's negotiation process, the overall agreement met the statutory criteria for approval. The Commission concluded that the parties had made a genuine effort to bargain in good faith, and the terms of the agreement were fair and reasonable. Consequently, the Commission approved the agreement, highlighting the importance of compliance with the Fair Work Act and the principles of good faith bargaining. The Commission's decision underscored the need for procedural fairness and the importance of ensuring that enterprise agreements are made in an environment free from coercion and undue influence.

Construction, Forestry, Mining and Energy Union

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established