Construction, Forestry, Mining and Energy Union

[2013] FWCA 474

FAIR WORK COMMISSION

DECISION

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

Construction, Forestry, Mining and Energy Union
(AG2013/4455)

LIVING COLOUR LANDSCAPES AND THE CFMEU BUILDING AND 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 Living Colour Landscapes 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 Living Colour Landscapes 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 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

The Construction, Forestry, Mining and Energy Union (CFMEU) applied for the approval of the Living Colour Landscapes and the CFMEU Building and Construction Industry Enterprise Agreement 2011-2015. The application was brought before the Fair Work Commission, which is the tribunal responsible for the approval of enterprise agreements. The dispute primarily involved the terms and conditions outlined in the proposed agreement, and whether they complied with the requirements set forth by the Fair Work Act 2009.

The legal issues the court had to decide were whether the enterprise agreement was fair and if it was consistent with the provisions of the Fair Work Act. Specifically, the court had to assess whether the agreement met the "better off overall test" and if it contained the necessary provisions regarding employee protections, dispute resolution mechanisms, and procedural fairness. The court also examined whether the agreement was genuinely negotiated between the employer and the employees' representatives.

The Fair Work Commission determined that the enterprise agreement was fair, as it met the "better off overall test" and included the necessary provisions for employee protections and dispute resolution. The court found that the agreement was genuinely negotiated and that the process followed was fair and transparent. The court further found that the agreement did not unfairly discriminate against any class of employees and that it provided adequate procedural fairness. Consequently, the court approved the Living Colour Landscapes and the CFMEU Building and Construction Industry Enterprise Agreement 2011-2015.

The Fair Work Commission approved the Living Colour Landscapes and the CFMEU Building and Construction Industry Enterprise Agreement 2011-2015, confirming its compliance with the Fair Work Act and its fairness for all parties involved.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established