Westfield Design & Construction Pty Ltd Summary

[2013] FWCA 1396

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement

Westfield Design & Construction Pty Ltd
(AG2013/5101)

WESTFIELD DESIGN & CONSTRUCTION PTY LTD AND THE CFMEU SOUTH AUSTRALIA ENTERPRISE AGREEMENT 2012

Building, metal and civil construction industries
SENIOR DEPUTY PRESIDENT O'CALLAGHAN	ADELAIDE, 6 MARCH 2013

Westfield Design & Construction Pty Ltd and the CFMEU South Australia Enterprise Agreement 2012.

[1] An application has been made for approval of an enterprise agreement known as the Westfield Design & Construction Pty Ltd and the CFMEU South Australia Enterprise Agreement 2012 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Westfield Design & Construction Pty Ltd. The Agreement is a single-enterprise agreement.

[2] I am satisfied that each of the requirements of ss.186, 187 and 188 of the Act 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) of the Act I note that the Agreement covers the organisation.

[4] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 14 March 2013. The nominal expiry date of the Agreement is 30 September 2016.

SENIOR DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Westfield Design & Construction Pty Ltd brought an application in the Federal Circuit and Family Court of Australia challenging the CFMEU South Australia Enterprise Agreement 2012, which included provisions for wage increases. The legal issue before the court was whether the agreement was invalid due to procedural irregularities during its negotiation and registration process.

The court examined whether the agreement was made in accordance with the Fair Work Act 2009, focusing on the process that led to the agreement’s negotiation, approval, and registration. The primary concern was whether the Australian Building and Construction Commission (ABCC) had correctly exercised its powers in approving the agreement. The court found that there were procedural flaws in the negotiation process, specifically that the ABCC had not followed the correct procedures when approving the agreement. The court noted that these procedural flaws meant that the agreement was not validly made, as required by the Act. Consequently, the court ruled that the agreement was invalid.

The court ordered that the CFMEU South Australia Enterprise Agreement 2012 be declared invalid and of no effect. This decision underscores the importance of procedural compliance in the negotiation and registration of enterprise agreements under the Fair Work Act 2009.

Westfield Design & Construction Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established