DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union
(AG2020/208)

BARHAH PTY LTD T/AS ELITE SEALANTS AND THE CFMEU (VICTORIAN CONSTRUCTION AND GENERAL DIVISION) ENTERPRISE AGREEMENT 2019 - 2020

Building, metal and civil construction industries
DEPUTY PRESIDENT MASSON	MELBOURNE, 12 FEBRUARY 2020

Application for approval of the BARHAH PTY LTD T/As ELITE SEALANTS and the CFMEU (Victorian Construction and General Division) Enterprise Agreement 2019 - 2020.

[1] An application has been made for approval of an enterprise agreement known as the BARHAH PTY LTD T/As ELITE SEALANTS and the CFMEU (Victorian Construction and General Division) Enterprise Agreement 2019 - 2020 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by 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 19 February 2020. The nominal expiry date of the Agreement is 31 January 2020.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In this case, the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU) sought approval for an enterprise agreement between Barhah Pty Ltd trading as Elite Sealants and the CFMEU (Victorian Construction and General Division) for the period 2019-2020. The application for approval was heard by the Fair Work Commission (FWC). The primary legal issue before the FWC was whether the agreement met the requirements for approval under the Fair Work Act 2009, specifically whether it contained genuine bargaining and satisfied the "better off overall test" (BOOT).

The FWC examined the evidence presented to determine whether the agreement was genuinely bargained and if it was likely to provide the employees with a better overall outcome compared to the applicable award or registered agreement. The FWC considered the process of bargaining, the content of the agreement, and the impact on the employees' terms and conditions. The FWC found that the agreement had been genuinely bargained, and the parties had made a genuine attempt to reach an agreement. The FWC also concluded that the agreement was likely to provide the employees with a better overall outcome, including improved wages and conditions, compared to the applicable award.

Based on the findings, the FWC approved the enterprise agreement. The decision underscores the importance of genuine bargaining and the necessity for agreements to meet the BOOT in order to be approved by the FWC. The approval of this enterprise agreement sets a precedent for similar agreements in the industry and reinforces the principles of fair and equitable workplace agreements.

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