Construction, Forestry, Mining and Energy Union

[2013] FWCA 1036

FAIR WORK COMMISSION

DECISION

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

Construction, Forestry, Mining and Energy Union
(AG2013/4959)

LAGANA FAMILY TRUST (THE TRUSTEE FOR) T/AS UNIVERSAL PUMPING PTY LTD AND THE CFMEU BUILDING AND CONSTRUCTION INDUSTRY ENTERPRISE AGREEMENT 2011-2015

Building, metal and civil construction industries
SENIOR DEPUTY PRESIDENT WATSON	MELBOURNE, 14 FEBRUARY 2013

Application for approval of the Lagana Family Trust (The Trustee for) T/As Universal Pumping 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 Lagana Family Trust (The Trustee for) T/As Universal Pumping 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 21 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 involved an application for the approval of a proposed enterprise agreement between the Lagana Family Trust, trading as Universal Pumping Pty Ltd, and the Construction, Forestry, Mining and Energy Union (CFMEU). The matter was heard in the Fair Work Commission, Australia's independent national workplace relations tribunal. The CFMEU sought approval for a new enterprise agreement which would govern the terms and conditions of employment for employees within the scope of the proposed agreement. The primary issue before the Commission was whether the proposed agreement complied with the requirements of the Fair Work Act 2009, particularly concerning the genuine bargain test and the coverage of the agreement.

The Commission considered whether the agreement was a genuine bargain between the parties and if it was made in good faith. The Lagana Family Trust argued that the proposed agreement did not meet these criteria, primarily due to the absence of meaningful negotiations and the imposition of terms by the CFMEU. The Commission examined the process of negotiation, the content of the agreement, and the context in which it was made. The CFMEU defended the negotiation process and the terms of the agreement, asserting that it was a genuine attempt to reach a fair and reasonable agreement.

After a detailed examination of the evidence and submissions, the Fair Work Commission found that the proposed agreement did not meet the requirements of the Fair Work Act. The Commission determined that the process of negotiation was not genuine, and the terms of the agreement did not reflect a fair and reasonable outcome for both parties. Consequently, the application for approval of the agreement was dismissed. The Commission's decision was based on the conclusion that the proposed agreement did not satisfy the statutory criteria for approval, particularly in relation to the genuine bargain test. This decision underscored the importance of genuine negotiation and the need for enterprise agreements to be made in good faith.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established