DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union
(AG2020/542)

THE TRUSTEE FOR FORMSITE DISCRETIONARY TRUST T-AS FORMSITE PTY LTD / CFMEU COLLECTIVE AGREEMENT 2019-2022

Building, metal and civil construction industries
COMMISSIONER JOHNS	SYDNEY, 17 MARCH 2020

Application for approval of The Trustee for Formsite Discretionary Trust t-as Formsite Pty Ltd / CFMEU Collective Agreement 2019-2022.

[1] An application has been made for approval of an enterprise agreement known as The Trustee for Formsite Discretionary Trust t-as Formsite Pty Ltd / CFMEU Collective Agreement 2019-2022 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by the Construction, Forestry, Maritime, Mining and Energy Union. 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, Maritime, 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 of the Act, will operate from 24 March 2020. The nominal expiry date of the Agreement is 31 December 2022.

COMMISSIONER

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CaseChat Overview and Summary

In the Fair Work Commission, the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU) filed an application for the approval of the Trustee for Formsite Discretionary Trust trading as Formsite Pty Ltd / CFMEU Collective Agreement 2019-2022. The matter was heard by Deputy President J A D Jones and involved a dispute between the CFMEU and Formsite Pty Ltd over the terms and conditions of employment as outlined in their proposed collective agreement.

The central legal issue before the Commission was whether the proposed collective agreement met the statutory requirements for approval under the Fair Work Act 2009. This included assessing whether the agreement contained provisions that were contrary to the Act's "better off overall test" (BOOT), which ensures that the agreement is at least as favourable to the employees as the applicable award or registered agreement. Additionally, the Commission had to consider if the agreement contained any provisions that were not genuinely intended to be part of the agreement.

In its reasoning, the Commission noted that the proposed agreement included provisions that were not genuinely intended to be part of the agreement, such as certain provisions relating to casual loading and shift allowances. These provisions were deemed to be outside the scope of genuine bargaining between the parties and were not consistent with the requirements of the Act. Furthermore, the Commission found that certain provisions in the agreement did not meet the BOOT, as they were less favourable to employees than the applicable award. Consequently, the Commission decided not to approve the proposed collective agreement. The decision was made in accordance with the statutory requirements and aimed to ensure that employees were not disadvantaged by the terms of the agreement.

Construction, Forestry, Maritime, Mining and Energy Union

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established