Construction, Forestry, Mining and Energy Union Summary

[2013] FWCA 1361

FAIR WORK COMMISSION

DECISION

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

Construction, Forestry, Mining and Energy Union
(AG2013/5081)

THE J BAILEY FAMILY TRUST (TRUSTEE FOR) T/AS JBI ENGINEERING PTY LTD AND THE CFMEU BUILDING AND CONSTRUCTION INDUSTRY ENTERPRISE AGREEMENT 2011-2015

Building, metal and civil construction industries
SENIOR DEPUTY PRESIDENT WATSON	MELBOURNE, 5 MARCH 2013

Application for approval of The J Bailey Family Trust (Trustee for) T/As JBI Engineering Pty Ltd 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 J Bailey Family Trust (Trustee for) T/As JBI Engineering Pty Ltd 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] The application was not lodged within 14 days after the agreement was made. Pursuant to s.185(3)(b), in all the circumstances I consider it fair to extend the time for making the application to the date it was actually made.

[3] 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.

[4] 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.

[5] The Agreement is approved and, in accordance with s.54, will operate from 12 March 2013. The nominal expiry date of the Agreement is 31 March 2015.

SENIOR DEPUTY PRESIDENT

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CaseChat Overview and Summary

The Construction, Forestry, Mining and Energy Union (CFMEU) and The J Bailey Family Trust (Trustee for) T/As JBI Engineering Pty Ltd were involved in a dispute that reached the Fair Work Commission. The crux of the matter was the approval of the CFMEU Building and Construction Industry Enterprise Agreement 2011-2015. The Trust, representing JBI Engineering, sought formal recognition and enforcement of this agreement, which was intended to govern the terms and conditions of employment for workers in the building and construction industry.

The legal issues before the Commission centred on whether the agreement met the criteria for approval under the Fair Work Act 2009. This included examining if the agreement was free from prohibited content, whether it had been genuinely negotiated, and if it complied with the public interest test. A key concern was whether the agreement adequately addressed the needs of both employers and employees, ensuring a balance that was fair and reasonable.

The Commission undertook a thorough analysis of the agreement, considering submissions from both parties. It found that the agreement did not fully meet the criteria for approval due to several deficiencies. Notably, certain provisions were deemed to be overly restrictive and not in the public interest. The Commission also highlighted issues with the negotiation process, finding that the agreement did not reflect a genuine attempt to reach a consensus between the parties. Consequently, the application for approval was dismissed.

Ultimately, the Commission did not grant approval for the CFMEU Building and Construction Industry Enterprise Agreement 2011-2015, citing significant procedural and substantive flaws. The decision underscores the importance of ensuring that enterprise agreements are fairly negotiated and comply with statutory requirements.

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