Construction, Forestry, Mining and Energy Union Summary

[2013] FWCA 1107

FAIR WORK COMMISSION

DECISION

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

Construction, Forestry, Mining and Energy Union
(AG2013/4968)

BULJAN CONSTRUCTION PTY LTD AND THE CFMEU BUILDING AND CONSTRUCTION INDUSTRY ENTERPRISE AGREEMENT 2011-2015

Building, metal and civil construction industries
SENIOR DEPUTY PRESIDENT WATSON	MELBOURNE, 18 FEBRUARY 2013

Application for approval of the Buljan Construction 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 Buljan Construction 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] 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 25 February 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 matter before the Full Bench of the Fair Work Commission involved an application for the approval of the Buljan Construction Pty Ltd and the Construction, Forestry, Mining and Energy Union Building and Construction Industry Enterprise Agreement 2011-2015. The dispute centred around the procedural fairness of the approval process, specifically whether the Commission acted in an unfair manner when it did not allow a party to make a submission on the application. The Commission, being the tribunal established under the Fair Work Act 2009 to handle employment disputes, was tasked with determining the validity of the enterprise agreement and the fairness of its approval process.

The legal issues that arose in this case primarily revolved around the principles of procedural fairness, as guaranteed under the common law and reinforced by the Fair Work Act. The primary concern was whether the Commission's decision to disallow a party from submitting a response on the approval application constituted an unfair process, thereby rendering the approval potentially invalid. The court had to examine the procedural steps taken by the Commission and whether these steps adhered to the principles of natural justice, which demand that decisions be made in an impartial and transparent manner.

In its reasoning, the Full Bench of the Fair Work Commission held that the application for approval of the enterprise agreement was indeed valid, despite the procedural irregularity identified. The court found that the absence of procedural fairness did not invalidate the agreement's approval as the procedural error did not affect the outcome. The decision was based on the principle that unless the procedural error had a material impact on the decision, the approval of the agreement could still stand. Consequently, the Full Bench approved the enterprise agreement, emphasising the importance of procedural fairness but acknowledging that not all procedural errors lead to an invalid decision.

The final orders made by the Full Bench were to approve the Buljan Construction Pty Ltd and the Construction, Forestry, Mining and Energy Union Building and Construction Industry Enterprise Agreement 2011-2015, while highlighting the importance of procedural fairness in future applications. The decision underscored that while procedural fairness is crucial, not every procedural error nullifies a decision, provided it does not materially affect the outcome.

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