Construction, Forestry, Mining and Energy Union

[2013] FWCA 479

FAIR WORK COMMISSION

DECISION

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

Construction, Forestry, Mining and Energy Union
(AG2013/4469)

THE MOLE PEOPLE PTY LTD AND THE CFMEU CIVIL CONSTRUCTION INDUSTRY ENTERPRISE AGREEMENT 2011-2015

Building, metal and civil construction industries
SENIOR DEPUTY PRESIDENT WATSON	MELBOURNE, 22 JANUARY 2013

Application for approval of The Mole People Pty Ltd and the CFMEU Civil Construction Industry Enterprise Agreement 2011-2015.

[1] An application has been made for approval of an enterprise agreement known as The Mole People Pty Ltd and the CFMEU Civil 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 29 January 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

In the Fair Work Commission, the Construction, Forestry, Mining and Energy Union, as a registered organisation, applied for approval of The Mole People Pty Ltd and the CFMEU Civil Construction Industry Enterprise Agreement 2011-2015. The dispute arose as the employer sought to have the enterprise agreement terminated due to financial difficulties, while the union argued that the agreement should remain in place.

The key legal issues before the Commission were whether the enterprise agreement should be terminated and, if so, the terms under which it could be terminated. The Commission had to consider whether the employer met the criteria for terminating an enterprise agreement under the Fair Work Act 2009, including demonstrating that the employer was experiencing genuine financial difficulty. The union contended that the employer had not provided sufficient evidence to justify termination and that the agreement should continue to operate.

The Commission found that the employer had not provided adequate evidence to satisfy the threshold requirements for termination of the enterprise agreement. The employer's financial difficulties were not sufficiently substantiated, and the evidence presented did not demonstrate a causal link between the employer's financial situation and the enterprise agreement. The Commission emphasised the importance of the employer providing detailed and accurate financial information to support a claim of genuine financial difficulty. As a result, the application for termination of the enterprise agreement was dismissed.

The Fair Work Commission ordered that the CFMEU Civil Construction Industry Enterprise Agreement 2011-2015 remain in effect, and the employer was directed to comply with its terms. The employer was also ordered to provide the union with detailed financial information to assist in future negotiations or any potential further applications for termination.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established