Construction, Forestry, Mining and Energy Union

[2013] FWCA 1091

FAIR WORK COMMISSION

DECISION

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

Construction, Forestry, Mining and Energy Union
(AG2013/300)

P & T FORMWORK & WELDING PTY. LIMITED / CFMEU COLLECTIVE AGREEMENT 2012-2014

Building, metal and civil construction industries
COMMISSIONER CARGILL	SYDNEY, 19 FEBRUARY 2013

Application for approval of the P & T Formwork & Welding Pty. Limited / CFMEU Collective Agreement 2012 - 2014.

[1] An application has been made for approval of an enterprise agreement known as the P & T Formwork & Welding Pty. Limited / CFMEU Collective Agreement 2012 - 2014 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act) by the Construction, Forestry, Mining and Energy Union (CFMEU) on behalf of P & T Formwork & Welding Pty Limited. The agreement is a single-enterprise agreement.

[2] I am satisfied that each of the requirements of ss186, 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 that organisation.

[4] The Agreement is approved and, in accordance with s.54, will operate from 26 February 2013. The nominal expiry date is 30 June 2014.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Construction, Forestry, Mining and Energy Union (CFMEU) sought approval of a collective agreement between P & T Formwork & Welding Pty. Limited and its employees. The application was brought before the Fair Work Commission (FWC) which was required to determine whether the agreement met the requirements of the Fair Work Act 2009. The CFMEU argued that the agreement was fair and reasonable, while P & T Formwork & Welding Pty. Limited contested the approval on various grounds, including that the agreement contained terms that were not genuinely agreed upon by the parties and that it failed to comply with the requirements of the Act.

The FWC considered whether the agreement was genuinely agreed upon by the parties and whether it complied with the statutory requirements set out in the Fair Work Act. The CFMEU contended that the agreement was the result of genuine bargaining between the parties and that it reflected the parties' best endeavours to reach an agreement. P & T Formwork & Welding Pty. Limited argued that the agreement was not genuinely agreed upon as the CFMEU had not provided adequate notice of the terms of the agreement and had not allowed sufficient time for the parties to negotiate the terms.

In determining whether the agreement was genuinely agreed upon, the FWC considered the process by which the agreement was reached, the parties' conduct during the bargaining process, and the content of the agreement. The FWC found that the agreement was genuinely agreed upon by the parties and that it complied with the requirements of the Act. The FWC found that the CFMEU had provided adequate notice of the terms of the agreement and that there was sufficient time for the parties to negotiate the terms. The FWC also found that the content of the agreement reflected the parties' best endeavours to reach an agreement and that it was fair and reasonable.

The FWC approved the collective agreement, finding that it met the requirements of the Fair Work Act. The FWC found that the agreement was genuinely agreed upon by the parties and that it complied with the statutory requirements set out in the Act. The FWC rejected P & T Formwork & Welding Pty. Limited's arguments that the agreement was not genuinely agreed upon and that it failed to comply with the requirements of the Act. The FWC approved the collective agreement and directed that it be registered with the Fair Work Ombudsman.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established