Construction, Forestry, Mining and Energy Union Summary

[2013] FWCA 1119

FAIR WORK COMMISSION

DECISION

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

Construction, Forestry, Mining and Energy Union
(AG2013/4997)

D & F WATERS FAMILY TRUST T/AS DKT EARTHMOVING & MACHINERY PTY LTD AND THE CFMEU DEMOLITION ENTERPRISE AGREEMENT 2011-2015

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

Application for approval of the D & F Waters Family Trust T/As DKT Earthmoving & Machinery Pty Ltd and the CFMEU Demolition Enterprise Agreement 2011-2015.

[1] An application has been made for approval of an enterprise agreement known as the D & F Waters Family Trust T/As DKT Earthmoving & Machinery Pty Ltd and the CFMEU Demolition 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 involves an application for approval of an enterprise agreement between the D & F Waters Family Trust trading as DKT Earthmoving & Machinery Pty Ltd and the Construction, Forestry, Mining and Energy Union (CFMEU). The application was brought before the Fair Work Commission (FWC) under the Fair Work Act 2009. The CFMEU sought to have the agreement, which was negotiated between the employer and union, approved by the FWC as a registered enterprise agreement.

The primary legal issue before the Commission was whether the agreement complied with the statutory requirements set out in the Fair Work Act for it to be approved as a registered enterprise agreement. Specifically, the FWC had to determine if the agreement met the "better off overall test" (BOOT) and if it was made in good faith. Additionally, the FWC needed to assess if the agreement was free from any invalid provisions that could render it unenforceable or non-compliant.

In deciding the matter, the FWC found that the agreement did meet the BOOT, as the overall benefits provided to the employees under the agreement were sufficient to outweigh any detriments. The Commission also found that the agreement was made in good faith and was free from any invalid provisions. Consequently, the FWC approved the application and registered the agreement as a lawful enterprise agreement. The decision emphasised the importance of the BOOT and good faith in the context of enterprise agreements, ensuring that employees are genuinely better off as a result of the agreement and that the negotiation process was fair and transparent.

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