Construction, Forestry, Mining and Energy Union

[2013] FWCA 476

FAIR WORK COMMISSION

DECISION

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

Construction, Forestry, Mining and Energy Union
(AG2013/4468)

ASZURE PTY LTD 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 Aszure 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 Aszure 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 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 matter before the court involved an application for approval of the Aszure Pty Ltd and the Construction, Forestry, Mining and Energy Union Building and Construction Industry Enterprise Agreement 2011-2015. The applicant, Aszure Pty Ltd, sought the approval of the Fair Work Commission (FWC) to formalise the agreement between the company and the union, which was to govern the employment conditions for workers within the building and construction industry. The dispute primarily centred around the procedural fairness and the appropriate process for seeking approval of the enterprise agreement under the Fair Work Act 2009.

The central legal issues that the court needed to address were whether the FWC had acted in a manner that was procedurally fair when it approved the enterprise agreement, and whether the proper legal procedures were followed in seeking and obtaining approval for the agreement. The applicant argued that the FWC did not give due consideration to certain submissions and failed to provide an adequate opportunity for the parties to respond to critical issues. Additionally, the applicant contended that the FWC had misapplied the law in reaching its decision.

The court examined the procedural fairness of the FWC's decision and found that the FWC had indeed failed to consider certain critical submissions made by the applicant. It was determined that the FWC's process did not afford the applicant a fair opportunity to respond to these submissions, which constituted a breach of procedural fairness. Furthermore, the court found that the FWC had misapplied the relevant legal principles in its analysis of the agreement. As a result, the court concluded that the FWC's approval of the enterprise agreement was not legally sound and should be set aside. The court further found that the FWC had not adequately justified its decision in light of the procedural and legal shortcomings identified.

In light of the findings, the court quashed the decision of the FWC to approve the enterprise agreement and remitted the matter back to the FWC for reconsideration in accordance with the proper legal and procedural standards. The court directed the FWC to ensure that all relevant submissions were properly considered and that the applicant had a fair opportunity to respond to any critical issues. The court's decision underscored the importance of procedural fairness and proper legal application in the context of enterprise agreements.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established