DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union
(AG2020/125)

C.M FITT & B.L WALKER T/AS PERFORMANCE ENGINEERING AND DRAFTING AND THE CFMEU (VICTORIAN CONSTRUCTION AND GENERAL DIVISION) ENTERPRISE AGREEMENT 2019 - 2020

Building, metal and civil construction industries
COMMISSIONER LEE	MELBOURNE, 31 JANUARY 2020

Application for approval of the C.M FITT & B.L WALKER T/As PERFORMANCE ENGINEERING AND DRAFTING 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 C.M FITT & B.L WALKER T/As PERFORMANCE ENGINEERING AND DRAFTING 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 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 7 February 2020. The nominal expiry date of the Agreement is 31 January 2020.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The case involves an application for approval of the C.M FITT & B.L WALKER T/As PERFORMANCE ENGINEERING AND DRAFTING and the CFMEU (Victorian Construction and General Division) Enterprise Agreement 2019 - 2020. The application was heard by the Fair Work Commission, which was tasked with determining whether the agreement met the requirements of the Fair Work Act 2009. The legal issues before the Commission centred on the interpretation of the Act and the criteria for the approval of enterprise agreements, particularly focusing on whether the agreement provided for the "better off overall test" and the procedural fairness in the agreement's negotiation and drafting.

The Commission began by examining the provisions of the agreement to ascertain if it satisfied the "better off overall test" stipulated by the Act. This test requires that the agreement must ensure that employees are no worse off and ideally better off than they would be under the applicable award or safety net. The Commission considered the submissions from both parties and evaluated the evidence provided. It was noted that the agreement included provisions that went beyond the safety net in terms of wages, leave, and other conditions. The Commission then turned to the question of procedural fairness, which is essential for the validity of an enterprise agreement. It was imperative that the agreement was negotiated in good faith and that all relevant parties had an opportunity to participate in the negotiation process.

The Fair Work Commission concluded that the agreement met the "better off overall test" and was therefore compliant with the statutory requirements. It found that the agreement provided for better wages, leave entitlements, and other conditions than those set out in the relevant awards. The Commission was also satisfied that the negotiation process was conducted in good faith and that all parties had an opportunity to contribute to the drafting of the agreement. As a result, the Commission approved the enterprise agreement. The final orders confirmed the approval of the C.M FITT & B.L WALKER T/As PERFORMANCE ENGINEERING AND DRAFTING and the CFMEU (Victorian Construction and General Division) Enterprise Agreement 2019 - 2020, effective from the date of the decision.

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