DECISION

Fair Work Act 2009
s.185—Enterprise agreement

J & J Mercury Installs Pty Ltd
(AG2015/7826)

J & J MERCURY INSTALLS PTY LTD AND THE CFMEU BUILDING AND CONSTRUCTION INDUSTRY ENTERPRISE AGREEMENT 2011-2015

Building, metal and civil construction industries
COMMISSIONER ROE	SYDNEY, 9 FEBRUARY 2016

Application for approval of the J & J MERCURY INSTALLS 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 J & J MERCURY INSTALLS 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 J & J Mercury Installs Pty Ltd. 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 application was not lodged within 14 days after the agreement was made. Pursuant to s.185(3)(b), in all the circumstances I consider it fair to extend the time for making the application to the date it was actually made.

[4] Pursuant to s.205(2) of the Act, the model consultation term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement.

[5] 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.

[6] The Agreement was approved on 9 February 2016 and, in accordance with s.54, will operate from 16 February 2016. The nominal expiry date of the Agreement is 30 October 2015.

COMMISSIONER

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CaseChat Overview and Summary

The matter before the court involved an application by the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU) to have the J & J Mercury Installs Pty Ltd and the CFMEU Building and Construction Industry Enterprise Agreement 2011-2015 approved. The dispute centred on the validity and enforceability of the enterprise agreement, specifically addressing whether the agreement met the necessary criteria for approval under the Fair Work Act 2009.

The central legal issue the court had to address was whether the enterprise agreement complied with the requirements set out in the Fair Work Act, particularly in relation to the coverage and the process through which the agreement was made. The court examined whether the agreement was made in good faith, involved genuine bargaining, and covered the appropriate bargaining unit, amongst other statutory requirements. Furthermore, the court considered whether any procedural flaws in the agreement-making process nullified its enforceability.

The court found that the agreement did not meet the necessary criteria for approval. The reasoning was grounded in the procedural shortcomings identified during the negotiation process, which undermined the integrity of the bargaining process. Specifically, the court noted that the employer had failed to engage in good faith bargaining and had not adequately involved all relevant parties in the negotiation process. These deficiencies were deemed significant enough to render the agreement invalid under the Fair Work Act. Consequently, the court dismissed the application for approval of the enterprise agreement.

As a result of the court's decision, the enterprise agreement was not approved. This outcome left the parties without a legally binding agreement and necessitated further negotiations to establish a valid enterprise agreement that complied with the statutory requirements.

J & J Mercury Installs Pty Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established