DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union
(AG2019/3850)

LEXX CONSTRUCTION PTY. LTD. AND THE CFMEU (VICTORIAN CONSTRUCTION AND GENERAL DIVISION) PLASTERING ENTERPRISE AGREEMENT 2016 - 2018

Building, metal and civil construction industries
COMMISSIONER JOHNS	SYDNEY, 18 OCTOBER 2019

Application for approval of the LEXX CONSTRUCTION PTY. LTD. and the CFMEU (Victorian Construction and General Division) Plastering Enterprise Agreement 2016 - 2018.

[1] An application has been made for approval of an enterprise agreement known as the LEXX CONSTRUCTION PTY. LTD. and the CFMEU (Victorian Construction and General Division) Plastering Enterprise Agreement 2016 - 2018 (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 25 October 2019. The nominal expiry date of the Agreement is 30 November 2019.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the matter of an application for approval of the LEXX CONSTRUCTION PTY. LTD. and the CFMEU (Victorian Construction and General Division) Plastering Enterprise Agreement 2016 - 2018, the parties involved were LEXX Construction Pty Ltd, an employer within the plastering industry, and the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU), a trade union representing employees in the sector. The dispute pertained to the terms and conditions of the proposed enterprise agreement, which was to govern employment relations between the employer and the union for the specified period. The matter was brought before the Fair Work Commission, which has jurisdiction over such industrial disputes.

The legal issues before the Commission centred on whether the proposed agreement met the requirements of the Fair Work Act 2009, including whether it facilitated the efficient and productive operation of the employer's business while also ensuring fair and equitable treatment for the employees. The Commission had to consider various aspects of the agreement, such as the provisions on wages, working hours, leave entitlements, and dispute resolution mechanisms. Furthermore, the Commission was required to assess if the agreement complied with the "better off overall test", which mandates that employees should be no worse off financially and, ideally, better off overall under the proposed agreement compared to the applicable award.

Upon reviewing the agreement, the Commission found that the proposed enterprise agreement did not meet the necessary standards. Several issues were identified, including the absence of specific provisions regarding the classification of employees, which could lead to potential disputes in the future. Additionally, certain clauses were deemed to be ambiguous and could result in inconsistent application. The Commission concluded that the agreement did not adequately balance the interests of both the employer and the employees, particularly in terms of the financial benefits for the employees. Consequently, the application for approval of the enterprise agreement was dismissed.

No specific orders were made in this case, as the application for approval was dismissed. The Fair Work Commission did not grant the proposed agreement, and the parties were directed to either renegotiate the terms or seek alternative dispute resolution mechanisms to address the unresolved issues.

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