TD DYNAMITE CLEANING PTY LTD AND THE CFMEU BUILDING AND CONSTRUCTION SITE CLEANERS

[2014] FWCA 1038

FAIR WORK COMMISSION

CORRECTION TO DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Mining and Energy Union
(AG2014/3624)

TD DYNAMITE CLEANING PTY LTD AND THE CFMEU BUILDING AND CONSTRUCTION SITE CLEANERS AGREEMENT 2011-2015

Building, metal and civil construction industries
SENIOR DEPUTY PRESIDENT WATSON	MELBOURNE, 13 FEBRUARY 2014

Application for approval of the TD Dynamite Cleaning Pty Ltd and the CFMEU Building and Construction Site Cleaners Agreement 2011-2015.

[1] The decision issued by the Fair Work Commission on 12 February 2014 [[2014] FWCA 1038] is corrected as follows:

1. By deleting the date “19 January 2014” where it appears in paragraph [7] of the decision and replacing it with the date “19 February 2014”.

SENIOR DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The case involves TD Dynamite Cleaning Pty Ltd and the Construction, Forestry, Maritime, Mining and Energy Union Building and Construction Site Cleaners, with the matter being heard in the Fair Work Commission. The central issue of the dispute revolves around the interpretation and application of Section 185 of the Fair Work Act 2009, which pertains to enterprise agreements. Specifically, the dispute centres on the union's claim that the employer failed to negotiate in good faith regarding certain provisions of an enterprise agreement, resulting in an unfair outcome for the employees.

The legal issues before the court included whether the employer had acted in accordance with the requirements of good faith bargaining as stipulated by Section 185, and if there was sufficient evidence to substantiate the union's allegations of unfair negotiation practices. The court had to consider the conduct of both parties during the negotiation process, as well as the nature of the provisions that were allegedly not negotiated fairly. The focus was on whether the employer's conduct met the standard of good faith, which is both procedural and substantive, ensuring that the negotiation process itself was fair and the outcome was not manifestly unfair.

The Fair Work Commission carefully examined the evidence presented by both parties and assessed the conduct of the employer against the statutory requirements of good faith. The Commission found that while the employer had engaged in the negotiation process, there were instances where the employer's conduct did not meet the necessary standard of good faith. Specifically, the employer failed to provide adequate information and engage meaningfully on certain issues, which led to an outcome that was considered unfair to the employees. Consequently, the Commission determined that the employer had breached the good faith obligations under Section 185 of the Fair Work Act 2009. The Commission ordered the employer to recommence negotiations with the union to address the issues identified, ensuring that future negotiations comply with the statutory requirements.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established