Construction, Forestry, Mining and Energy Union

[2013] FWCA 156

FAIR WORK COMMISSION

DECISION

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

Construction, Forestry, Mining and Energy Union
(AG2012/14455)

AC CONSTRUCTION GROUP PTY LTD AND THE CFMEU BUILDING AND CONSTRUCTION INDUSTRY ENTERPRISE AGREEMENT 2011-2015

Building, metal and civil construction industries
SENIOR DEPUTY PRESIDENT WATSON	MELBOURNE, 9 JANUARY 2013

Application for approval of the AC Construction Group 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 AC Construction Group 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 16 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 Fair Work Commission (FWC) considered an application for approval of the AC Construction Group Pty Ltd and the Construction, Forestry, Mining and Energy Union Building and Construction Industry Enterprise Agreement 2011-2015. The application was made by the union, which sought to have the agreement approved as a "single interest employer agreement" under section 233 of the Fair Work Act 2009. The legal issue before the FWC was whether the agreement could be approved as a single interest employer agreement, given that the employer had multiple business entities and the agreement did not cover all of them.

The FWC noted that for an agreement to be approved as a single interest employer agreement, the employer must be a single interest employer as defined in section 169 of the Act. The definition includes employers with multiple business entities if they are "substantially similar in the nature of the business carried on." The FWC considered whether AC Construction Group's entities were substantially similar in the nature of their business. The union argued that the entities were substantially similar because they all engaged in construction activities. However, the FWC found that while the entities were involved in construction, they operated in different sectors and had different business models, which meant they were not substantially similar.

Given this finding, the FWC concluded that AC Construction Group was not a single interest employer for the purposes of section 233. Therefore, the agreement could not be approved as a single interest employer agreement. The FWC did not approve the application for agreement approval.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established