DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union
(AG2019/3806)

FCG CONSTRUCTIONS TRUST (THE TRUSTEE FOR) AND THE CFMEU (VICTORIAN CONSTRUCTION AND GENERAL DIVISION) ENTERPRISE AGREEMENT 2016 -2018

Building, metal and civil construction industries
COMMISSIONER LEE	SYDNEY, 16 OCTOBER 2019

Application for approval of the FCG CONSTRUCTIONS TRUST (THE TRUSTEE FOR) and the CFMEU (Victorian Construction and General Division) Enterprise Agreement 2016 -2018.

[1] An application has been made for approval of an enterprise agreement known as the FCG CONSTRUCTIONS TRUST (THE TRUSTEE FOR) and the CFMEU (Victorian Construction and General Division) 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 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 23 October 2019. The nominal expiry date of the Agreement is 30 November 2019.

COMMISSIONER

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CaseChat Overview and Summary

The matter before the Fair Work Commission involved an application for approval of an enterprise agreement between the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU) and FCG Constructions Trust, the trustee for the FCG Constructions Trust. The agreement, titled the CFMEU (Victorian Construction and General Division) Enterprise Agreement 2016-2018, was submitted for assessment under the Fair Work Act 2009. The central issue before the commission was whether the proposed agreement complied with the requirements of the Act and could be approved without modifications.

The legal issues encompassed several key aspects. Firstly, the commission had to determine if the agreement was genuinely a product of bargaining between the parties, as mandated by the Fair Work Act. This required scrutiny of the negotiation process and whether both parties had genuinely attempted to reach an agreement. Secondly, the commission assessed whether the agreement met the ‘better-off, overall test’ under section 235 of the Act, ensuring that the proposed terms were at least as favourable to employees as the applicable award. Additionally, the commission examined the agreement's compliance with the ‘no disadvantage test’ under section 233, ensuring that employees would not be worse off under the new agreement compared to their existing conditions.

Upon reviewing the evidence and submissions, the commission concluded that the agreement was a genuine product of bargaining. The negotiation process demonstrated a mutual effort by both parties to reach a mutually beneficial outcome. The commission found that the agreement satisfied the ‘better-off, overall test’ as it provided terms that were at least as favourable as those under the applicable award. Furthermore, the agreement passed the ‘no disadvantage test’, confirming that employees would not be worse off under the new terms. Based on these findings, the commission approved the proposed enterprise agreement without modification.

The Fair Work Commission approved the CFMEU (Victorian Construction and General Division) Enterprise Agreement 2016-2018, recognising it as a genuine product of bargaining and compliant with the statutory requirements of the Fair Work Act. This decision was based on the commission's determination that the agreement met the ‘better-off, overall test’ and the ‘no disadvantage test’, ensuring that employees would benefit from the new terms without any detriment to their existing conditions.

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