Construction, Forestry, Mining and Energy Union-Victoria Branch

[2013] FWCA 103

FAIR WORK COMMISSION

DECISION

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

Construction, Forestry, Mining and Energy Union-Victoria Branch
(AG2012/14214)

3FOLD RESOURCES 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 3Fold Resources 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 3Fold Resources 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 court involved the Construction, Forestry, Mining and Energy Union-Victoria Branch and 3Fold Resources Pty Ltd, with the primary focus on the approval of the CFMEU Building and Construction Industry Enterprise Agreement for the period 2011-2015. The Fair Work Commission was petitioned to approve the agreement, which had been subject to negotiation and agreement between the union and the employer. The court was tasked with determining whether the agreement met the necessary criteria for approval under the Fair Work Act 2009.

The central legal issue the court needed to address was whether the enterprise agreement complied with the provisions of the Fair Work Act. Specifically, the court had to examine whether the agreement satisfied the "better off overall test" and whether it contained any unfair provisions that would render it invalid. The court also needed to consider whether the agreement was made in good faith and if it adhered to the principles of procedural fairness.

In delivering the decision, the court found that the agreement met the requirements under the Fair Work Act. It was determined that the agreement was beneficial to the employees as it provided them with terms and conditions that were better than what they would have otherwise received. The court also concluded that the agreement was made in good faith and that no unfair provisions were present. The procedural fairness was upheld as the negotiation process was transparent and the union had adequately represented its members. As a result, the court approved the agreement, confirming its validity and enforceability under the Act.

The final orders of the court were that the CFMEU Building and Construction Industry Enterprise Agreement 2011-2015 be approved, and it was to be registered with the Fair Work Commission. This decision allowed the agreement to be implemented, providing the agreed terms and conditions for the employees within the specified period.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established