Construction, Forestry, Mining and Energy Union

[2013] FWCA 1109

FAIR WORK COMMISSION

DECISION

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

Construction, Forestry, Mining and Energy Union
(AG2013/4973)

PROLINE PAINTING SERVICES 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 Proline Painting Services 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 Proline Painting Services 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 case before the court involved an application by the Construction, Forestry, Mining and Energy Union (CFMEU) for approval of the Proline Painting Services Pty Ltd and the CFMEU Building and Construction Industry Enterprise Agreement 2011-2015. This agreement was a collective bargaining agreement intended to regulate employment conditions between the parties. The primary issue was whether the agreement complied with the requirements of the Fair Work Act 2009 and the Fair Work Regulations 2009.

The court was tasked with determining whether the enterprise agreement met the necessary criteria for approval, including whether it provided for a genuine enterprise bargaining process, contained permissible terms and conditions, and complied with procedural requirements. The court examined the evidence presented by both parties and considered the relevant legislative provisions and case law.

The court concluded that the agreement did not meet the requirements for approval. The court found that there were procedural irregularities in the bargaining process, which undermined the genuineness of the enterprise bargaining. Additionally, the court determined that certain terms in the agreement did not comply with the statutory provisions. As a result, the application for approval was dismissed.

The court did not grant approval for the enterprise agreement and noted that the procedural issues and non-compliant terms were significant enough to warrant the dismissal of the application. This decision emphasised the importance of procedural integrity and statutory compliance in the formation and approval of enterprise agreements.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established