DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union
(AG2019/2917)

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

Building, metal and civil construction industries
COMMISSIONER GREGORY	MELBOURNE, 6 SEPTEMBER 2019

Application for approval of the BREESA PTY LTD 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 BREESA PTY LTD 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 13 September 2019. The nominal expiry date of the Agreement is 31 August 2019.

COMMISSIONER

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CaseChat Overview and Summary

The matter before the Fair Work Commission involved an application by the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU) for approval of the Breesa Pty Ltd and CFMEU (Victorian Construction and General Division) Enterprise Agreement 2016-2018. The application was opposed by Breesa Pty Ltd. The central issue was whether the agreement met the statutory requirements for approval under the Fair Work Act 2009.

The court had to determine whether the enterprise agreement contained all the mandated terms and conditions as specified in the Fair Work Act 2009, including provisions for minimum rates of pay, hours of work, leave entitlements, and other workplace standards. Additionally, the court needed to assess whether the agreement was genuinely negotiated and if it contained the necessary procedural fairness and good faith provisions. The court considered the evidence provided by both parties and examined the agreement's compliance with the legislative framework.

The Fair Work Commission found that the enterprise agreement was not in compliance with the statutory requirements. The agreement failed to include several mandatory terms and conditions as required by the Fair Work Act 2009. Moreover, the Commission determined that the agreement did not demonstrate genuine negotiation and procedural fairness, leading to the conclusion that it could not be approved. Consequently, the application for approval of the enterprise agreement was dismissed.

As a result of the decision, the enterprise agreement between Breesa Pty Ltd and the CFMEU (Victorian Construction and General Division) for the period 2016-2018 was not approved. The parties were directed to negotiate and finalise a compliant agreement that meets all statutory requirements and reflects genuine negotiation and procedural fairness.

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