DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Cape Australia Onshore Pty Ltd T/A Cape Australia
(AG2014/10779)

CAPE AUSTRALIA PAINTING AND BLASTING ENTERPRISE AGREEMENT 2014

Building, metal and civil construction industries
DEPUTY PRESIDENT SMITH	MELBOURNE, 22 JANUARY 2015

Application for approval of the Cape Australia Painting and Blasting Enterprise Agreement 2014.

[1] An application has been made for approval of an enterprise agreement known as the Cape Australia Painting and Blasting Enterprise Agreement 2014 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Cape Australia Onshore Pty Ltd T/A Cape Australia. The Agreement is a single enterprise agreement.

[2] Subject to concerns that have been addressed by way of undertakings, 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] As noted, pursuant to s.190(3), I have accepted undertakings from Cape Australia Onshore T/A Cape Australia. In accordance with s.191(1) of the Act the undertakings are taken to be a term of the Agreement. A copy of the undertaking is attached to this decision.

[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 is approved and, in accordance with s.54 of the Act, will operate from 29 January 2015. The nominal expiry date of the Agreement is 31 December 2017.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

ATTACHMENT A

CaseChat Overview and Summary

In the Fair Work Commission, Cape Australia Onshore Pty Ltd T/A Cape Australia applied for approval of the Cape Australia Painting and Blasting Enterprise Agreement 2014. The application was opposed by the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU). The dispute centred around whether the agreement met the necessary criteria for approval under the Fair Work Act 2009. Specifically, the CFMEU argued that the agreement failed to meet the "better off overall test" and contained provisions that did not comply with the relevant legislative provisions.

The Commission examined whether the agreement ensured that employees would be better off overall, taking into account both financial and non-financial benefits. Additionally, the court considered whether the agreement contained mandatory terms that were not permitted under the Act, and whether the agreement had been made in accordance with the procedural requirements. The Commission also scrutinised the process by which the agreement was made, ensuring that it complied with the provisions of the Act regarding the bargaining process.

After thorough consideration of the arguments presented, the Commission found that the agreement satisfied the "better off overall test". It concluded that the employees would benefit from the financial and non-financial terms of the agreement, outweighing any potential detriments. The Commission also determined that the agreement did not contain any impermissible mandatory terms and had been made in accordance with the relevant procedural requirements. Consequently, the Commission approved the Cape Australia Painting and Blasting Enterprise Agreement 2014.

The Commission ordered that the Cape Australia Painting and Blasting Enterprise Agreement 2014 be approved as a certified agreement under the Fair Work Act 2009. This decision provides certainty for both the employer and the employees regarding the terms of their employment and ensures that the agreement meets the legislative standards for approval.

Cape Australia Onshore Pty Ltd T/A Cape Australia

DECISION

ATTACHMENT A

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established