Construction, Forestry, Mining and Energy Union

[2013] FWCA 150

FAIR WORK COMMISSION

DECISION

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

Construction, Forestry, Mining and Energy Union
(AG2012/14401)

DSD BUILDING CONTRACTORS 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 DSD Building Contractors 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 DSD Building Contractors 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 matter before the Fair Work Commission involved an application for the approval of the DSD Building Contractors Pty Ltd and the Construction, Forestry, Mining and Energy Union Building and Construction Industry Enterprise Agreement 2011-2015. The applicant, DSD Building Contractors, sought approval of the enterprise agreement, which governed the terms and conditions of employment for its employees. The respondent, CFMEU, sought to have certain provisions of the agreement upheld, while also challenging others.

The central legal issues that the Commission needed to address involved whether the agreement met the requirements of the Fair Work Act 2009 and whether it complied with the procedural fairness requirements set forth by the Fair Work Act. This included an examination of whether the agreement had been genuinely negotiated, whether it contained mandatory terms that were necessary to protect the interests of employees, and whether it provided for a fair and reasonable resolution of workplace issues. The Commission also needed to determine if the agreement was consistent with the Fair Work (Registered Organisations) Act 2009 and whether it provided for an appropriate balance between the rights and interests of both employers and employees.

The Fair Work Commission determined that the enterprise agreement met the statutory requirements set forth in the Fair Work Act 2009. The Commission found that the agreement had been genuinely negotiated between the parties, contained mandatory terms that were necessary to protect the interests of employees, and provided for a fair and reasonable resolution of workplace issues. The Commission further found that the agreement was consistent with the Fair Work (Registered Organisations) Act 2009 and provided for an appropriate balance between the rights and interests of both employers and employees. Consequently, the Commission approved the DSD Building Contractors Pty Ltd and the CFMEU Building and Construction Industry Enterprise Agreement 2011-2015.

The final orders of the Fair Work Commission included the approval of the DSD Building Contractors Pty Ltd and the CFMEU Building and Construction Industry Enterprise Agreement 2011-2015. The Commission ordered that the agreement be registered as a registered agreement under the Fair Work Act 2009, and that it would come into effect on the date of the Commission's decision. The Commission also ordered that the agreement would remain in force until it was terminated, varied, or replaced in accordance with the provisions of the Fair Work Act 2009.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established