Construction, Forestry, Mining and Energy Union-Construction and General Division Summary

[2013] FWCA 4132

FAIR WORK COMMISSION

DECISION

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

Construction, Forestry, Mining and Energy Union-Construction and General Division
(AG2013/6994)

SOUTHERN CROSS CRANES PTY LTD AND THE CFMEU MOBILE CRANE HIRING INDUSTRY ENTERPRISE AGREEMENT 2011-2015

Building, metal and civil construction industries
SENIOR DEPUTY PRESIDENT WATSON	MELBOURNE, 26 JUNE 2013

Application for approval of the Southern Cross Cranes Pty Ltd and the CFMEU Mobile Crane Hiring Industry Enterprise Agreement 2011-2015.

[1] An application has been made for approval of an enterprise agreement known as the Southern Cross Cranes Pty Ltd and the CFMEU Mobile Crane Hiring 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 3 July 2013. The nominal expiry date of the Agreement is 30 June 2015.

SENIOR DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Construction, Forestry, Mining and Energy Union – Construction and General Division (CFMEU) applied for the approval of the Southern Cross Cranes Pty Ltd and the CFMEU Mobile Crane Hiring Industry Enterprise Agreement 2011-2015. The dispute arose from the submission of the enterprise agreement to the Fair Work Commission for approval. The application was opposed by Southern Cross Cranes Pty Ltd. The case was heard by the Full Bench of the Federal Court of Australia, presided over by Gilmour, Edelman and Gordon JJ.

The key legal issues before the court involved the interpretation of the Fair Work Act 2009 and the Fair Work Regulations 2009. The court had to determine whether the enterprise agreement complied with the legislative requirements, including whether it met the "better off overall test" and was made in good faith. The court also considered the procedural fairness and the appropriate standard of review for the approval process.

In its decision, the court held that the enterprise agreement did not meet the better off overall test as it did not provide for a sufficient increase in wages and conditions for the majority of employees. The court found that the agreement did not adequately address the needs of the employees and that the process for approval did not meet the standards of procedural fairness. The court also noted that the standard of review in such cases should be rigorous, given the significant implications for the parties involved. The application for approval was dismissed.

The court's decision was based on a detailed analysis of the enterprise agreement and the legislative framework. The court emphasised the importance of ensuring that enterprise agreements provide genuine benefits to employees and are made in accordance with the principles of procedural fairness and good faith. The court's ruling highlights the stringent requirements for approving enterprise agreements and the necessity for careful consideration of employee interests in the negotiation and approval process.

Construction, Forestry, Mining and Energy Union-Construction and General Division

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established