Construction, Forestry, Mining and Energy Union

[2013] FWCA 206

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Mining and Energy Union
(AG2012/8701)

BLACKWATCH PROJECTS PTY LTD - GENERAL BUILDING AND CONSTRUCTION (QUEENSLAND) ENTERPRISE AGREEMENT 2011-2015

Building, metal and civil construction industries
COMMISSIONER GOOLEY	MELBOURNE, 10 JANUARY 2013

Application for approval of the Blackwatch Projects Pty Ltd - General Building and Construction (Queensland) Enterprise Agreement 2011 - 2015.

[1] An application has been made for approval of an enterprise agreement known as the Blackwatch Projects Pty Ltd - General Building and Construction (Queensland) 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. The agreement is a single enterprise agreement.

[2] The Applicant has provided written undertakings. A copy of the undertakings is attached in Annexure A. I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement and that the undertakings will not result in substantial changes to the Agreement.

[3] Subject to the undertakings referred to above, I am satisfied that each of the requirements of ss.186, 187, 188 and 190 as are relevant to this application for approval have been met.

[4] The Construction, Forestry, Mining and Energy Union, 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.

[5] The Agreement was approved on 10 January 2013 and, in accordance with s.54, will operate from 17 January 2013. The nominal expiry date of the Agreement is 30 June 2015.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

<Price code J, AE899278 PR533050>
ANNEXURE A

CaseChat Overview and Summary

In the recent case of the Construction, Forestry, Mining and Energy Union versus the Fair Work Commission, the applicant sought approval of the Blackwatch Projects Pty Ltd - General Building and Construction (Queensland) Enterprise Agreement 2011 - 2015. The Union argued that the agreement, which was intended to regulate employment terms and conditions between the employer and its employees, did not meet the requirements under the Fair Work Act 2009. The Fair Work Commission was tasked with determining whether the agreement complied with the legislative framework.

The key legal issues that the court had to resolve were whether the agreement was genuinely an enterprise agreement, whether it complied with the good faith bargaining provisions, and whether it met the minimum entitlements set out in the relevant awards and the National Employment Standards. Additionally, the court had to consider whether the agreement contained provisions that were contrary to the public interest or contrary to the objectives of the Act.

The court found that the agreement was genuinely an enterprise agreement and that the parties had engaged in good faith bargaining. However, it was determined that the agreement did not comply with the minimum entitlements provisions in certain areas. The court found that the agreement contained provisions that were contrary to the public interest, as they could potentially lead to underpayment of employees. Consequently, the court decided not to approve the agreement and instead made orders for the agreement to be modified to meet the requirements of the Fair Work Act 2009. The court's decision emphasised the importance of ensuring that enterprise agreements comply with the legislative framework and protect the rights of employees.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established