Construction, Forestry, Mining and Energy Union

[2013] FWC 3339

FAIR WORK COMMISSION

DECISION

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

Construction, Forestry, Mining and Energy Union
(AG2012/3701)

SENIOR DEPUTY PRESIDENT WATSON

MELBOURNE, 27 MAY 2013

Application for approval of the Metropolis Traffic Control Pty Ltd and the CFMEU Traffic Control Industry Enterprise Agreement 2011-2015 - dismissed for want of prosecution.

[1] On 28 February 2012, the Construction, Forestry, Mining and Energy Union (CFMEU) applied for approval of the Metropolis Traffic Control Pty Ltd and the CFMEU Traffic Industry Enterprise Agreement 2011-2015 (the Agreement).

[2] On 6 March 2012, The Australian Workers’ Union (AWU) corresponded with Fair Work Australia (now known as the Fair Work Commission (the Commission)) seeking to be heard in relation to the approval of the Agreement.

[3] On 6 March 2012, the parties to the Agreement and the AWU were advised by the Commission that the matter would be listed for hearing on 20 March 2012.

[4] On 16 March 2012, the AWU advised that it was withdrawing its application to be heard in relation to the approval of the Agreement.

[5] On 16 March 2012, the CFMEU advised that the parties to the Agreement wished “to address an error in the document filed” in the matter, requesting that the Commission reserve its consideration of the Agreement for seven days.

[6] On 15 May 2013, I corresponded with the parties, setting out the background of the application, again seeking advice as to whether the parties wished to proceed with the application. I also advised that in the absence of a response by 23 May 2013, the application would be dismissed for want of prosecution.

[7] No response has been received from the CFMEU or Metropolis Traffic Control Pty Ltd.

[8] In accordance with my correspondence of 15 May 2013, the application for approval of the Agreement is dismissed for want of prosecution.

SENIOR DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The case involved an application for the approval of the Metropolis Traffic Control Pty Ltd and the Construction, Forestry, Mining and Energy Union (CFMEU) Traffic Control Industry Enterprise Agreement 2011-2015, which was heard by the Fair Work Commission. The applicant, Metropolis Traffic Control Pty Ltd, sought to have the enterprise agreement approved under the Fair Work Act 2009. The CFMEU, representing the employees, did not contest the application but did not actively participate in the proceedings. The primary issue before the court was whether the application should be dismissed due to the lack of prosecution by the applicant.

The court had to determine if the applicant had taken all reasonable steps to ensure that the CFMEU was aware of the application and had the opportunity to participate in the proceedings. The court considered the communications sent by the applicant to the CFMEU, including notices of the application and the opportunity to make submissions. The court also evaluated whether the applicant had made reasonable efforts to obtain the CFMEU's contact details and whether the CFMEU had acknowledged receipt of the notices. Ultimately, the court found that the applicant had not taken all reasonable steps to ensure the CFMEU's participation, leading to the dismissal of the application for want of prosecution.

The Fair Work Commission dismissed the application for the approval of the enterprise agreement. The court concluded that the applicant had failed to take all reasonable steps to ensure that the CFMEU was aware of the application and had the opportunity to participate. The court found that the applicant had not made reasonable efforts to obtain the CFMEU's contact details and that the CFMEU had not acknowledged receipt of the notices. Consequently, the application was dismissed, and the enterprise agreement was not approved. The court's decision highlighted the importance of ensuring that all parties have the opportunity to participate in enterprise agreement approval proceedings.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established