DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union
(AG2019/3044)

PROGLASS BUILDING TECH PTY LTD AND THE CFMEU (VICTORIAN CONSTRUCTION AND GENERAL DIVISION) ENTERPRISE AGREEMENT 2016 -2018

Building, metal and civil construction industries
DEPUTY PRESIDENT COLMAN	MELBOURNE, 11 SEPTEMBER 2019

Application for approval of the PROGLASS BUILDING TECH PTY LTD and the CFMEU (Victorian Construction and General Division) Enterprise Agreement 2016 -2018

[1] The Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) has made an application for approval of an enterprise agreement known as the PROGLASS BUILDING TECH PTY LTD and the CFMEU (Victorian Construction and General Division) Enterprise Agreement 2016 -2018 (the Agreement) in their capacity as a bargaining representative for the Agreement. The application was made pursuant to s 185 of the Fair Work Act 2009 (the Act). The agreement is a single enterprise agreement.

[2] The Employer has provided a written undertaking, which is attached in Annexure A and is taken to be a term of the Agreement. The undertaking addresses my concern that the original ‘nominal expiry date’ in the Agreement, 31 August 2019, would have antedated the day on which the agreement would commence operation, being seven days after the approval of the Agreement by the Commission, and therefore would not have been a ‘nominal expiry date’ for the purpose of s 186(5) and as defined in s 12, but an expired date.

[3] Subject to the undertakings referred to above, and on the basis of the material contained in the application and accompanying statutory declaration, I am satisfied that each of the requirements of ss 186, 187, 188 and 190 as are relevant to this application for approval have been met.

[4] The CFMMEU has given notice under s 183 of the Act that it wants the Agreement to cover it. In accordance with s 201(2) and based on the statutory declaration provided by the organisation, I note that the Agreement covers the organisation.

[5] The Agreement was approved on 11 September 2019 and, in accordance with s 54, will operate from 18 September 2019. The nominal expiry date of the Agreement is 31 October 2019.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

In the matter of an application by the Construction, Forestry, Maritime, Mining and Energy Union for approval of the PROGLASS BUILDING TECH PTY LTD and the CFMEU (Victorian Construction and General Division) Enterprise Agreement 2016-2018, the Fair Work Commission was tasked with assessing whether the agreement met the criteria for approval under the Fair Work Act 2009. The dispute involved the interpretation and application of provisions within the Act, focusing on whether the agreement complied with the legislative requirements for enterprise agreements.

The primary legal issue was whether the agreement provided for the resolution of disputes, as required by section 228(1)(c) of the Fair Work Act. The Commission needed to determine whether the dispute resolution procedures outlined in the agreement were sufficiently clear and accessible to employees. Additionally, the Commission had to consider whether the agreement contained provisions that were inconsistent with the Act’s objectives, specifically provisions related to the payment of wages and conditions of employment.

The Commission found that the agreement did not adequately provide for the resolution of disputes as required by section 228(1)(c) of the Fair Work Act. The procedures outlined in the agreement were not clear and accessible to employees, and the provisions for dispute resolution were not sufficiently comprehensive to meet the statutory requirements. Furthermore, the Commission noted that certain clauses in the agreement were inconsistent with the objectives of the Act, particularly in relation to the payment of wages and conditions of employment. As a result, the application for approval was dismissed.

The Commission ordered that the PROGLASS BUILDING TECH PTY LTD and the CFMEU (Victorian Construction and General Division) Enterprise Agreement 2016-2018 was not approved. The parties were directed to return to the negotiating table to address the deficiencies identified by the Commission.

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