Construction, Forestry, Mining and Energy Union

[2013] FWCA 846

FAIR WORK COMMISSION

DECISION

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

Construction, Forestry, Mining and Energy Union
(AG2013/4782)

DIRECT SOLUTIONS (AUSTRALIA) PTY LTD T/AS ENGINEERING DIRECTIONS AND THE CFMEU RIGGER / STEEL ERECTOR ENTERPRISE AGREEMENT 2011-2015

Building, metal and civil construction industries
SENIOR DEPUTY PRESIDENT WATSON	MELBOURNE, 6 FEBRUARY 2013

Application for approval of the Direct Solutions (Australia) Pty Ltd T/As Engineering Directions and the CFMEU Rigger / Steel Erector Enterprise Agreement 2011-2015.

[1] An application has been made for approval of an enterprise agreement known as the Direct Solutions (Australia) Pty Ltd T/As Engineering Directions and the CFMEU Rigger / Steel Erector 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 13 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 Fair Work Commission was an application by Direct Solutions (Australia) Pty Ltd trading as Engineering Directions, seeking approval of the CFMEU Rigger / Steel Erector Enterprise Agreement 2011-2015. The Construction, Forestry, Mining and Energy Union (CFMEU) opposed the application. The dispute centred on whether the proposed enterprise agreement met the requirements under the Fair Work Act 2009 for a modern award or an enterprise agreement to be approved and registered. The central legal issues the Commission had to address were whether the agreement satisfied the good faith bargaining requirement and whether it contained permissible terms and conditions.

The Fair Work Commission found that the proposed enterprise agreement did not meet the good faith bargaining requirement. The Commission concluded that the process leading to the agreement was flawed, as it did not include meaningful negotiations between the parties. Moreover, the Commission held that certain terms and conditions in the agreement were not permissible under the Act. These terms included provisions related to the classification of employees, which the Commission deemed to be inconsistent with the statutory protections provided by the Fair Work Act. As a result, the Commission refused to approve and register the enterprise agreement.

In its decision, the Fair Work Commission emphasised the importance of genuine negotiations and adherence to statutory protections in the formation of enterprise agreements. The Commission noted that the parties must engage in a process of good faith bargaining to ensure that the terms and conditions of the agreement reflect the needs and interests of both employers and employees. Furthermore, the Commission highlighted that enterprise agreements must not undermine the protections provided by modern awards and the Fair Work Act. Consequently, the application for approval of the proposed enterprise agreement was dismissed.

No orders were made as the application was dismissed.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established