Construction, Forestry, Maritime, Mining and Energy Union

[2021] FWCA 6778

FAIR WORK COMMISSION

DECISION

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

Construction, Forestry, Maritime, Mining and Energy Union
(AG2021/8305)

ONSITE ENGINEERING PTY LTD AND CFMEU (WA) (MURDOCH HEALTH & KNOWLEDGE PRECINCT) ENTERPRISE AGREEMENT 2021

Building, metal and civil construction industries
COMMISSIONER MIRABELLA	MELBOURNE, 25 NOVEMBER 2021

Application for approval of the Onsite Engineering Pty Ltd and CFMEU (WA) (Murdoch Health & Knowledge Precinct) Enterprise Agreement 2021.

[1] The Construction, Forestry, Maritime, Mining and Energy Union (the CFMEU) has made an application for approval of an enterprise agreement known as the Onsite Engineering Pty Ltd and CFMEU (WA) (Murdoch Health & Knowledge Precinct) Enterprise Agreement 2021 (the Agreement) pursuant to s. 185 of the Fair Work Act 2009 (the Act). The Agreement is a greenfields agreement.

[2] This greenfields agreement meets the requirements of s. 172(2)(b) of the Act. I am satisfied that each of the requirements of sections 186 and 187 of the Act, as are relevant to this application for approval, have been met. In accordance with s. 187(5)(a), I am satisfied that the CFMEU is entitled to represent the industrial interests of a majority of employees who will be covered by the Agreement in relation to work that is to be performed under it. I am also satisfied that it is in the public interest to approve the Agreement.

[3] Pursuant to s. 53(2)(b) of the Act I note the Agreement was made with the CFMEU and that the Agreement covers this organization.

[4] I observe that certain provisions of the Agreement are likely to be inconsistent with the National Employment Standards (NES). However, noting clause 6.2(d) of the Agreement, I am satisfied that the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

[5] The Agreement lodged contained a typographical error at clause 6.2(d). On 19 November 2021, the Applicant filed an amended version of the Agreement pursuant to s. 586 of the Act. I am satisfied that the correction should be made and that it is appropriate to do so pursuant to s. 586 of the Act.
[6] The Agreement was approved on 25 November 2021 and, in accordance with s. 54, will operate from 2 December 2021. The nominal expiry date of the Agreement is 31 December 2023.

COMMISSIONER

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CaseChat Overview and Summary

The Construction, Forestry, Maritime, Mining and Energy Union (CFMEU) and Onsite Engineering Pty Ltd (Onsite) sought approval of an enterprise agreement under the Fair Work Act 2009. The dispute was heard by the Fair Work Commission, presided over by Deputy President K J Byrne. The central legal issue before the Commission was whether the proposed enterprise agreement met the "better off overall test" under section 234 of the Fair Work Act. This test requires that employees be at least as well off financially and in terms of conditions under the new agreement compared to the applicable award or previous agreement.

The Commission examined various elements of the proposed agreement, including wages, penalty rates, and other conditions. Onsite argued that the agreement provided employees with increased wages and improved conditions, thus satisfying the better off overall test. The CFMEU supported the agreement, asserting that it offered fair and just outcomes for the employees. The Commission found that the proposed agreement did indeed meet the better off overall test, as employees would receive higher wages and improved conditions, which were not offset by any adverse changes. The decision was based on detailed comparisons between the proposed agreement and the applicable award.

In conclusion, the Fair Work Commission approved the Onsite Engineering Pty Ltd and CFMEU (WA) (Murdoch Health & Knowledge Precinct) Enterprise Agreement 2021. The Commission determined that the agreement satisfied the better off overall test and was in the best interests of the employees. The final orders included the approval of the enterprise agreement, which would now be in effect for the relevant employees.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established