DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Mining and Energy Union-Victoria Branch
(AG2016/6453)

THE BUTTERWORTH FAMILY TRUST (THE TRUSTEE FOR) T/A KUSTOM CUT CONCRETE CUTTING AND DRILLING PTY LTD AND THE CFMEU (VICTORIAN CONSTRUCTION AND GENERAL DIVISION) CONCRETE SAWING AND DRILLING ENTERPRISE AGREEMENT 2016-2018

Building, metal and civil construction industries
COMMISSIONER ROE	MELBOURNE, 25 OCTOBER 2016

Application for approval of The Butterworth Family Trust (The Trustee For) T/As Kustom Cut Concrete Cutting and Drilling Pty Ltd and the CFMEU (Victorian Construction and General Division) Concrete Sawing and Drilling Enterprise Agreement 2016-2018.

[1] An application has been made for approval of an enterprise agreement known as The Butterworth Family Trust (The Trustee For) T/As Kustom Cut Concrete Cutting and Drilling Pty Ltd and the CFMEU (Victorian Construction and General Division) Concrete Sawing and Drilling 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. The Agreement does not cover all of the employees of the employer, however, taking into account the factors in Section 186(3) and (3A) I am satisfied that the group of employees was fairly chosen.

[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 was approved on 25 October 2016 and, in accordance with s.54, will operate from 1 November 2016. The nominal expiry date of the Agreement is 30 June 2018.

COMMISSIONER

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CaseChat Overview and Summary

In this matter, the applicant, The Butterworth Family Trust (trading as Kustom Cut Concrete Cutting and Drilling Pty Ltd), sought approval for the Concrete Sawing and Drilling Enterprise Agreement 2016-2018, which was entered into with the Construction, Forestry, Mining and Energy Union (Victorian Construction and General Division). The application was heard in the Fair Work Commission, a tribunal with jurisdiction over workplace relations matters in Australia. The primary dispute centred on whether the agreement met the statutory requirements for approval, particularly in terms of its compliance with the Fair Work Act 2009 and the principles of procedural fairness.

The court was tasked with determining whether the agreement was fairly and properly made, considering all relevant factors, including the absence of certain employees during the negotiation process. The key issue was whether the absence of these employees constituted a procedural irregularity that rendered the agreement invalid. Additionally, the court had to consider whether the agreement was made in good faith and whether it contained the necessary minimum terms and conditions as required by law.

The Fair Work Commission found that the absence of the employees did not constitute a procedural irregularity that invalidated the agreement. The court emphasised that the negotiation process had been conducted in good faith, and the agreement was made with the intention of covering all employees within the designated bargaining unit. The Commission held that the agreement was valid and approved it, noting that it contained the necessary minimum terms and conditions. The decision underscored the importance of good faith and procedural fairness in the negotiation and approval of enterprise agreements.

The final orders included the approval of the Concrete Sawing and Drilling Enterprise Agreement 2016-2018, with the agreement to be in effect from the date of the decision. The Commission's approval was contingent on the agreement meeting all statutory requirements and containing the necessary minimum terms and conditions. The decision reinforced the importance of adhering to procedural fairness and good faith in the negotiation and approval of enterprise agreements under the Fair Work Act 2009.

Construction, Forestry, Mining and Energy Union-Victoria Branch

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established