Fondex Constructions Pty Ltd

[2014] FWCA 8220

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Fondex Constructions Pty Ltd
(AG2014/8984)

FONDEX CONSTRUCTIONS ENTERPRISE AGREEMENT 2014

Building, metal and civil construction industries
DEPUTY PRESIDENT GOSTENCNIK	MELBOURNE, 18 NOVEMBER 2014

Application for approval of the Fondex Constructions Enterprise Agreement 2014.

[1] An application has been made for approval of an enterprise agreement known as the Fondex Constructions Enterprise Agreement 2014 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Fondex Constructions Pty Ltd. The agreement is a single enterprise agreement.

[2] The Applicant has provided written undertakings. A copy of the undertakings is attached in Annexure A. I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement and that the undertakings will not result in substantial changes to the Agreement.

[3] Subject to the undertakings referred to above, I am satisfied that each of the requirements of ss.186, 187, 188 and 190 as are relevant to this application for approval have been met.

[4] The Agreement was approved on 18 November 2014 and, in accordance with s.54, will operate from 25 November 2014. The nominal expiry date of the Agreement is 17 November 2018.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

Fondex Constructions Pty Ltd recently sought approval of the Fondex Constructions Enterprise Agreement 2014 in a decision handed down by the Fair Work Commission. The applicant, Fondex Constructions, sought to have the proposed enterprise agreement registered under the Fair Work Act 2009. The agreement in question was made between Fondex Constructions and its employees who are represented by the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU).

The primary legal issue before the Commission was whether the proposed agreement met the requirements of section 230 of the Fair Work Act, which mandates that an enterprise agreement must be free from any coercion or undue influence. The CFMEU argued that the agreement did not meet these requirements, citing concerns over the process through which it was negotiated and the potential for undue influence on the part of the employer. The Commission needed to determine whether the agreement was genuinely negotiated and free from coercion or undue influence.

In its decision, the Commission found that the agreement was not free from undue influence. The Commission noted that the negotiation process was rushed and did not allow for adequate consultation with the employees. Furthermore, the Commission found that the employer had exerted undue influence by threatening to terminate employees if they did not accept the proposed agreement. The Commission held that these factors combined to invalidate the agreement under section 230 of the Act. The Commission refused to approve the enterprise agreement and ordered the matter be remitted back to the parties for further negotiation.

The Commission's decision highlights the importance of ensuring that enterprise agreements are genuinely negotiated and free from any form of coercion or undue influence. Employers and unions must adhere to the requirements of the Fair Work Act and ensure that the negotiation process is fair and transparent. Failure to do so may result in the agreement being invalidated and the matter being remitted back to the parties for further negotiation.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established