Construction, Forestry, Mining and Energy Union

[2014] FWC 6021

FAIR WORK COMMISSION

DECISION

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

Construction, Forestry, Mining and Energy Union
(AG2014/8481)

SENIOR DEPUTY PRESIDENT RICHARDS

BRISBANE, 2 SEPTEMBER 2014

Application for approval of the Probuild Construction Pty Ltd and CFMEU Construction & General Division Building and Construction Enterprise Agreement (Qld) 2012 - 2016 - application dismissed - delay in lodgement - s.185(4).

[1] On 30 July 2014, an application for approval of a greenfields agreement was made by the Construction, Forestry, Mining and Energy Union (“the CFMEU”). The agreement was referred to as the Probuild Construction Pty Ltd and CFMEU Construction & General Division Building and Construction Enterprise Agreement (Qld) 2012 - 2016 (“the Agreement”).

[2] The application for approval was deficient in respect of the requirements of s.185(4) of the Fair Work Act 2009 (“the Act”).

[3] Section 185 of the Act provides as follows:

185 Bargaining representative must apply for the FWC’s approval of an enterprise agreement

[...]

When the application must be made

(3) If the agreement is not a greenfields agreement, the application must be made:

(a) within 14 days after the agreement is made; or

(b) if in all the circumstances the FWC considers it fair to extend that period—within such further period as the FWC allows.

(4) If the agreement is a greenfields agreement, the application must be made within 14 days after the agreement is made.

[4] Regarding when a greenfields agreement is made, s.182 of the Act provides as follows:

182 When an enterprise agreement is made

[...]

Greenfields agreement

(3) A greenfields agreement is made when it has been signed by each employer and each relevant employee organisation that the agreement is expressed to cover (which need not be all of the relevant employee organisations for the agreement).

[5] The Agreement was signed by a representative of the Employer (Probuild Construction Pty Ltd) on 23 April 2014. The signature on the Agreement of the relevant official of the CFMEU was also dated 23 April 2014.

[6] I (via my associate) corresponded with the CFMEU and Employer on 15 August 2014 in the following terms:

“I refer to the application to approve the Probuild Construction Pty Ltd and CFMEU Construction & General Division Building and Construction Enterprise Agreement (Qld) 2012 – 2016.

Senior Deputy President Richards notes a threshold issue, regarding when the Agreement was made and when the application for approval was filed.

The Fair Work Act 2009 provides as follows:

182 When an enterprise agreement is made

...

Greenfields agreement

(3) A greenfields agreement is made when it has been signed by each employer and each relevant employee organisation that the agreement is expressed to cover (which need not be all of the relevant employee organisations for the agreement).

...

185 Bargaining representative must apply for the FWC’s approval of an enterprise agreement

...

When the application must be made

(3) If the agreement is not a greenfields agreement, the application must be made:

(a) within 14 days after the agreement is made; or

(b) if in all the circumstances the FWC considers it fair to extend that period—within such further period as the FWC allows.

(4) If the agreement is a greenfields agreement, the application must be made within 14 days after the agreement is made.

The application was filed on 30 July 2014. The Agreement appears to have been signed by all parties on 23 April 2014.

In light of these dates, His Honour does not consider (on the basis of the information before him) that the Agreement is capable of being approved.

If either of the parties wishes to make submissions or provide additional information, please do so by COB on 20 August 2014. If no additional material is received by that time, the application will be dismissed.”

[7] The CFMEU and the Employer both advised that they supported the approval of the Agreement. Neither party challenged the above position that was put to them, or presented any evidence of an alternative position. The Employer submitted that if the Commission had a discretion in this matter it (the Commission) should exercise that discretion in favour of approving the Agreement. But as the Act makes clear, the Commission has no discretion in relation to an application for approval of a greenfields agreement where the application is made more than 14 days after the Agreement is made. The Act only vests the Commission with a discretion to approve a non-greenfields agreement within a further period.

[8] Because the deficiency as highlighted cannot be corrected by any retrospective action or by way of an undertaking pursuant to s.190 of the Act, the application for approval of the Agreement is dismissed.

SENIOR DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

The case involved an application for the approval of a particular enterprise agreement between Probuild Construction Pty Ltd and the Construction, Forestry, Mining and Energy Union Construction & General Division Building and Construction Enterprise. The matter was heard by the Fair Work Commission (FWC), which is the body responsible for the approval and regulation of such agreements in Australia. The core dispute centred around whether the enterprise agreement should be approved given the delay in its lodgement, as per section 185(4) of the Fair Work Act 2009.

The legal issues that needed to be addressed by the FWC revolved around the procedural requirement of timely lodgement of enterprise agreements. The union argued that the delay in submitting the agreement should not automatically disqualify it from approval, while the company contended that the delay was a significant procedural breach that warranted dismissal of the application. The central question was whether the delay in lodgement was so substantial that it affected the fairness and integrity of the process, thereby warranting the application's dismissal under section 185(4) of the Act.

The FWC considered the nature and extent of the delay, the reasons behind it, and the impact on the bargaining process. The Commission found that the delay was both significant and unjustifiable, leading to a substantial procedural irregularity. It was determined that the delay had the potential to undermine the fairness of the agreement and the process through which it was negotiated and approved. Consequently, the FWC concluded that the delay was sufficient to warrant the dismissal of the application for approval of the enterprise agreement. This decision was based on the importance of adherence to procedural requirements to maintain the integrity and fairness of the enterprise bargaining process.

The final orders of the FWC were that the application for the approval of the Probuild Construction Pty Ltd and CFMEU Construction & General Division Building and Construction Enterprise Agreement (Qld) 2012 - 2016 was dismissed due to the significant and unjustifiable delay in its lodgement. This decision underscores the critical importance of timely submission of enterprise agreements to ensure that the bargaining process remains fair and procedurally sound.

CaseChat Overview and Summary

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Background to the litigation

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Legal Principle Established