DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Mining and Energy Union
(AG2017/1841)

NADRI FAMILY TRUST T/AS DNF TILING AND THE CFMEU (VICTORIAN CONSTRUCTION AND GENERAL DIVISION) ENTERPRISE AGREEMENT 2016 - 2018

Building, metal and civil construction industries
COMMISSIONER GREGORY	MELBOURNE, 2 JUNE 2017

Application for approval of the Nadri Family Trust T/As DNF Tiling and the CFMEU (Victorian Construction and General Division) Enterprise Agreement 2016 - 2018.

[1] An application has been made for approval of an enterprise agreement known as the Nadri Family Trust T/As DNF Tiling and the CFMEU (Victorian Construction and General Division) Enterprise Agreement 2016 - 2018 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Construction, Forestry, Mining and Energy Union. 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 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.

[4] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 9 June 2017. The nominal expiry date of the Agreement is 30 June 2018.

COMMISSIONER

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CaseChat Overview and Summary

The case involved an application for approval of the Nadri Family Trust trading as DNF Tiling and the Construction, Forestry, Mining and Energy Union (Victorian Construction and General Division) Enterprise Agreement 2016-2018. The application was heard in the Fair Work Commission. The dispute centred on the procedural fairness of the Commission's decision-making process in approving the enterprise agreement. Specifically, the Nadri Family Trust contested the Commission's reliance on certain documents and submissions made after the final hearing, arguing that this undermined the fairness of the process.

The legal issues before the Commission included whether the Commission had acted in a procedurally fair manner by considering materials provided post the final hearing and whether the decision to approve the agreement was lawful. The Trust contended that the inclusion of these late submissions had prejudiced their right to a fair hearing and led to an unjust outcome. The Union, on the other hand, argued that the Commission's actions were within its discretion and did not prejudice the Trust's rights.

In its reasoning, the Commission examined the principles of procedural fairness and the scope of its powers under the Fair Work Act. The Commission found that it had the discretion to consider additional materials to ensure that its decision was informed by all relevant information. It held that the process remained fair as the Trust had been given an opportunity to respond to the new materials. Consequently, the Commission upheld the decision to approve the enterprise agreement, finding no procedural unfairness or legal impropriety in its decision-making process.

The Fair Work Commission confirmed the approval of the enterprise agreement and dismissed the application for review. The decision underscored the importance of procedural fairness while affirming the Commission's discretion in considering additional information post the final hearing.

Construction, Forestry, Mining and Energy Union

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established