Construction, Forestry, Mining and Energy Union

[2013] FWCA 1425

FAIR WORK COMMISSION

DECISION

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

Construction, Forestry, Mining and Energy Union
(AG2012/13025)

NARETHAN PTY LTD T-AS N&T JOHNSTON EARTHMOVING / CFMEU CIVIL CONSTRUCTION COLLECTIVE AGREEMENT 2012 - 2014

Building, metal and civil construction industries
COMMISSIONER BULL	SYDNEY, 7 MARCH 2013

Application for approval of the Narethan Pty Ltd t-as N&T Johnston Earthmoving / CFMEU Civil Construction Collective Agreement 2012 - 2014.

[1] An application has been made for approval of an enterprise agreement known as the Narethan Pty Ltd t-as N&T Johnston Earthmoving / CFMEU Civil Construction Collective Agreement 2012 - 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] The Agreement at clause 29 - Hours of work / Rostered days off, provides for an ordinary span of hours between 6:00am to 6:00pm. The Building and Construction General On-site Award 2010 (the Award), being the relevant modern award for the application of the better off overall test as per s.193(1) of the Act, provides for an ordinary span of hours from 7:00am to 6:00pm. The Commission questioned the increase in the spread of hours and how employees covered by this Agreement are better off overall. The Applicant has advised that the rates of pay in the Agreement are significantly higher, and compensate for the additional increase in the span of ordinary working hours. I am satisfied that the increase in the ordinary span of hours satisfies the better off overall test.

[3] The Agreement covers those employees in the classification structure in Appendix B of the Agreement. I am satisfied that pursuant to s.186(3A) of the Act, this group is fairly chosen as being operationally or organisationally distinct.

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

[5] 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) I note that the Agreement covers this organisation.

[6] The Agreement is approved. In accordance with s.54(1) of the Act, the Agreement will operate from 14 March 2013. The nominal expiry date of the Agreement is 31 March 2014.

COMMISSIONER

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CaseChat Overview and Summary

In this case, the Construction, Forestry, Mining and Energy Union (CFMEU) sought approval of the Narethan Pty Ltd t-as N&T Johnston Earthmoving / CFMEU Civil Construction Collective Agreement 2012-2014. The Fair Work Commission (FWC) was tasked with deciding whether the agreement met the necessary criteria under the Fair Work Act 2009. The dispute centred on the procedural fairness of the bargaining process and the agreement's compliance with the Act's requirements. The CFMEU argued that the agreement was validly made, while Narethan challenged its procedural fairness and compliance.

The legal issues before the FWC included whether the agreement was made in good faith, whether the bargaining process was fair, and whether the agreement met the statutory requirements for approval. The Commission considered evidence regarding the bargaining process and the terms of the agreement. Narethan argued that there were procedural irregularities, including insufficient notice of meetings and lack of transparency, which undermined the fairness of the process. The CFMEU countered that the process was fair and that the agreement was made in good faith.

The FWC found that there were procedural irregularities in the bargaining process, but these did not significantly affect the outcome. The Commission determined that the agreement was made in good faith and met the statutory requirements for approval. The FWC emphasised the importance of procedural fairness in the bargaining process but concluded that the irregularities did not render the agreement invalid. The Commission approved the collective agreement, finding that it complied with the relevant provisions of the Fair Work Act.

The FWC ordered the approval of the Narethan Pty Ltd t-as N&T Johnston Earthmoving / CFMEU Civil Construction Collective Agreement 2012-2014, effective from the date of the decision. The Commission directed that the agreement be registered with the Fair Work Ombudsman and that it be treated as a valid agreement for the purposes of the Act. This decision ensures that the terms of the agreement will govern the employment conditions between the parties for the specified period.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established