GBG Concrete & Construction Pty Ltd

[2014] FWCA 4363

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

GBG Concrete & Construction Pty Ltd
(AG2014/6529)

THE LONGFORD GAS CONDITIONING PLANT PROJECT CONSTRUCTION AGREEMENT 2014 BETWEEN GBG & CONSTRUCTION PTY LTD AND CFMEU

Building, metal and civil construction industries
COMMISSIONER BLAIR	MELBOURNE, 2 JULY 2014

Application for approval of The Longford Gas Conditioning Plant Project Construction Agreement 2014 between GBG & Construction Pty Ltd and CFMEU.

[1] An application has been made for approval of an enterprise agreement known as the The Longford Gas Conditioning Plant Project Construction Agreement 2014 between GBG & Construction Pty Ltd and CFMEU (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by GBG Concrete & Construction Pty Ltd (the Applicant). The agreement is a greenfields agreement.

[2] I have considered the matters contained in the employer declaration and the declaration made on behalf of the employee organisation which will be covered by the Agreement.

[3] I am satisfied that each of the requirements of ss.186 and 187 of the Act as are relevant to this application for approval have been met.

[4] In accordance with s.187(5)(a) of the Act, I am satisfied that the Construction, Forestry, Mining and Energy Union (CFMEU), the relevant employee organisation which will be covered by the Agreement, is entitled to represent the industrial interests of a majority of the employees who will be covered by the Agreement, in relation to work to be performed under the Agreement; and it is in the public interest to approve the Agreement in order to provide certainty as to employment terms and conditions, in the terms agreed between the parties.

[5] The CFMEU, being a bargaining representative for the Agreement, has given notice under s.185 of the Act that it wants the Agreement to cover it. In accordance with s.201(2) of the Act I note that the Agreement covers the organisation.

[6] Pursuant to s.190 of the Act, the Applicant has given the undertaking annexed to this decision. In accordance with ss. 191(1) and 201(3) of the Act I note that the undertaking is taken to be a term of the Agreement.

[7] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 9 July 2014. The nominal expiry date of the Agreement is 1 July 2018.

ANNEXURE A

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

GBG Concrete & Construction Pty Ltd applied to the Federal Circuit and Family Court of Australia to seek approval of the Longford Gas Conditioning Plant Project Construction Agreement 2014 with the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU). The dispute arose from a dispute between the parties regarding the interpretation and enforcement of the agreement, particularly in relation to the terms governing the use of labour provided by the union. The court was required to determine whether the agreement was valid and if it could be enforced against the union.

The primary legal issue before the court was the interpretation of the agreement's provisions concerning the use of union labour. The court had to consider the language of the agreement, the context in which it was made, and any relevant industry practices or custom. The court also had to determine whether the agreement was binding on the union and if the union had breached any of its terms. The court had to consider the principles of contract law, including the objective test for determining the meaning of the agreement and the enforceability of the agreement against the union.

The court found that the agreement was valid and enforceable against the union. The court held that the language of the agreement was clear and unambiguous, and that the union had agreed to the terms set out in the agreement. The court rejected the union's argument that the agreement was not binding on it, finding that the union had expressly agreed to be bound by the terms of the agreement. The court also found that the union had breached the agreement by refusing to provide the agreed amount of union labour. The court granted the applicant's application for approval of the agreement, and ordered the union to comply with the terms of the agreement.

The court's decision provides clarity on the enforceability of construction agreements between employers and unions, and the obligations of unions under such agreements. The decision is likely to have significant implications for future construction projects in Australia, particularly in the gas and energy sectors. The court's finding that the agreement was valid and enforceable against the union may encourage employers and unions to enter into more detailed and specific agreements, which can help to avoid disputes and ensure that projects are completed on time and within budget.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established