Construction, Forestry, Mining and Energy Union

[2013] FWCA 157

FAIR WORK COMMISSION

DECISION

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

Construction, Forestry, Mining and Energy Union
(AG2012/14464)

RUSSELL & JOANNE GORDON FAMILY TRUST (TRUSTEE FOR) T/AS COMMERCIAL CONTROL 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 Russell & Joanne Gordon Family Trust (Trustee for) T/As Commercial Control 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 Russell & Joanne Gordon Family Trust (Trustee for) T/As Commercial Control 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

In the case of the Construction, Forestry, Mining and Energy Union (CFMEUA), the applicant sought approval for the Russell & Joanne Gordon Family Trust (Trustee for) T/As Commercial Control Pty Ltd and the CFMEU Building and Construction Industry Enterprise Agreement 2011-2015. The matter was heard by the Fair Work Commission (FWC). The primary dispute involved the eligibility of the enterprise agreement for registration under the Fair Work Act 2009, specifically regarding whether the applicant union had the necessary majority support from the relevant employees to have the agreement approved.

The legal issues that required resolution were whether the CFMEU had the requisite majority of employees within the bargaining unit who were eligible to be covered by the agreement, and if the application met the statutory requirements for approval. The court needed to examine the definition of "relevant employees" as per section 172(1)(a) of the Act and whether the applicant union had obtained the necessary majority support from these employees to proceed with the approval process.

The Fair Work Commission held that the applicant union had not demonstrated that it had obtained the majority support of the relevant employees, and thus, the application for approval of the enterprise agreement was not eligible for registration. The Commission's decision was based on the absence of sufficient evidence showing that the majority of the relevant employees supported the application. Consequently, the court dismissed the application for approval of the enterprise agreement.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established