Construction, Forestry, Maritime, Mining and Energy Union

[2019] FWCA 6939

FAIR WORK COMMISSION

decision

Fair Work Act 2009

s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union

(AG2019/3681)

NELSON ASPHALTING AND EXCAVATIONS PTY LTD and the CFMEU (Victorian Construction and General Division) Asphalt Enterprise Agreement 2016 -2018

Building, metal and civil construction industries
Commissioner Johns	SYDNEY, 8 OCTOBER 2019

Application for approval of the NELSON ASPHALTING AND EXCAVATIONS PTY LTD and the CFMEU (Victorian Construction and General Division) Asphalt Enterprise Agreement 2016 -2018.

An application has been made for approval of an enterprise agreement known as the NELSON ASPHALTING AND EXCAVATIONS PTY LTD and the CFMEU (Victorian Construction and General Division) Asphalt 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.

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.

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.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 15 October 2019. The nominal expiry date of the Agreement is 31 October 2019.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the Fair Work Commission, the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU) applied for approval of the Nelson Asphalting and Excavations Pty Ltd and the CFMEU (Victorian Construction and General Division) Asphalt Enterprise Agreement 2016-2018. The agreement in question was the result of negotiations between the parties, which were conducted under the auspices of the Fair Work Act 2009. The primary dispute centred on the terms and conditions of employment for workers in the asphalting industry, particularly those employed by Nelson Asphalting and Excavations Pty Ltd.

The legal issues before the Commission were whether the agreement met the criteria for approval under section 233 of the Fair Work Act. This included determining if the agreement was in the public interest, if it provided for the terms and conditions of employment of the employees covered by it, and if it was made in good faith and without coercion. Additionally, the Commission had to consider if the agreement met the requirements for being a "single interest employer agreement" and whether it complied with the "better off overall test".

After examining the evidence and submissions presented by both parties, the Commission found that the agreement was in the public interest and provided for the terms and conditions of employment of the employees covered by it. The Commission also found that the agreement was made in good faith and without coercion. Furthermore, the agreement met the requirements for being a "single interest employer agreement" and complied with the "better off overall test". Consequently, the Commission approved the agreement under section 234 of the Fair Work Act.

In light of the findings, the Fair Work Commission approved the Nelson Asphalting and Excavations Pty Ltd and the CFMEU (Victorian Construction and General Division) Asphalt Enterprise Agreement 2016-2018. This decision was based on the conclusion that the agreement met all the statutory criteria for approval and was in the best interests of the employees and the public.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established