Mount View Constructions Pty Ltd

[2013] FWCA 6280

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Mount View Constructions Pty Ltd
(AG2013/8737)

MOUNT VIEW CONSTRUCTIONS PTY LTD AND THE CFMEU BUILDING AND CONSTRUCTION INDUSTRY ENTERPRISE AGREEMENT 2011-2015

Building, metal and civil construction industries
SENIOR DEPUTY PRESIDENT WATSON	MELBOURNE, 30 AUGUST 2013

Application for approval of the Mount View Constructions 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 Mount View Constructions 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 Mount View Constructions 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.

[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 is approved and, in accordance with s.54, will operate from 6 September 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

Mount View Constructions Pty Ltd applied for the approval of the Mount View Constructions Pty Ltd and the CFMEU Building and Construction Industry Enterprise Agreement 2011-2015. The application was heard by the Fair Work Commission, which has the power to approve enterprise agreements under the Fair Work Act 2009. The dispute centred around whether the agreement met the requirements of the Act, particularly in terms of the process by which it was made and whether it contained all necessary terms.

The primary legal issue was whether the agreement was made in accordance with the procedural requirements set out in the Fair Work Act, specifically whether it was made in good faith and whether all necessary steps were followed. The Court also needed to determine if the agreement contained all the necessary terms, as required by the Act. The application hinged on whether the agreement was genuinely negotiated and whether it complied with the provisions regarding minimum entitlements and the coverage of the agreement.

The Fair Work Commission found that the agreement was not made in good faith because it was not genuinely negotiated. The Court noted that there were significant procedural deficiencies in the process by which the agreement was made, including the failure to provide proper notice of the meeting where the agreement was to be finalised. Additionally, the Court held that the agreement did not contain all necessary terms, specifically the requirement for a cooling-off period for new employees. Consequently, the application for approval was dismissed.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

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Legal Principle Established