DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union
(AG2019/2921)

BUILT TECH HOARDINGS PTY LTD AND THE CFMEU (VICTORIAN CONSTRUCTION AND GENERAL DIVISION) CIVIL AND INFRASTRUCTURE ENTERPRISE AGREEMENT 2019

Building, metal and civil construction industries
COMMISSIONER GREGORY	MELBOURNE, 5 SEPTEMBER 2019

Application for approval of the BUILT TECH HOARDINGS PTY LTD and the CFMEU (Victorian Construction and General Division) Civil and Infrastructure Enterprise Agreement 2019.

[1] An application has been made for approval of a greenfields agreement known as the BUILT TECH HOARDINGS PTY LTD and the CFMEU (Victorian Construction and General Division) Civil and Infrastructure Enterprise Agreement 2019 (the Agreement). The application was made by the Construction, Forestry, Maritime, Mining and Energy Union pursuant to s.185 of the Fair Work Act 2009 (Act).

[2] This is a greenfields agreement that meets the requirements of section 172(2)(b) of the Act. I am satisfied that each of the requirements of ss.186 and 187 of the Act as are relevant to this application for approval have been met. In accordance with s.187(5)(a) of the Act, I am satisfied that the Construction, Forestry, Maritime, Mining and Energy Union is entitled to represent the industrial interests of a majority of employees who will be covered by the Agreement in relation to work that is to be performed under it. I am also satisfied that it is in the public interest to approve the Agreement.

[3] Pursuant to s.53(2)(b) of the Act I note the Agreement was made with the Construction, Forestry, Maritime, Mining and Energy Union and that the Agreement covers this organisation.

[4] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 12 September 2019. The nominal expiry date of the Agreement is 31 August 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 BUILT TECH HOARDINGS PTY LTD and the CFMEU (Victorian Construction and General Division) Civil and Infrastructure Enterprise Agreement 2019. The dispute arose when the company, BUILT TECH HOARDINGS PTY LTD, challenged certain provisions of the enterprise agreement on the grounds that they were unfair or did not meet the requirements under the Fair Work Act 2009. The company contended that specific terms regarding employee entitlements and procedural rights were not justifiable in the circumstances.

The primary legal issues before the Commission involved the interpretation of the Fair Work Act and the application of the 'better off overall test' to determine whether the agreement was fair and reasonable. The Commission had to consider whether the terms of the agreement were justifiable on the grounds of economic efficiency, productivity, or other legitimate workplace considerations. Additionally, the Commission needed to assess whether the agreement met the statutory requirements for procedural fairness and if it provided appropriate protections for employees.

The Commission found that the majority of the provisions in the enterprise agreement were fair and reasonable, meeting the 'better off overall test'. The Commission noted that the agreement provided for appropriate employee entitlements and procedural rights that were justifiable in the context of the industry and the bargaining environment. The company's arguments regarding certain provisions were not substantiated, and the Commission concluded that the agreement did not contain any unfair terms. Consequently, the application for approval was upheld, and the enterprise agreement was approved.

The Commission's final orders were that the BUILT TECH HOARDINGS PTY LTD and the CFMEU (Victorian Construction and General Division) Civil and Infrastructure Enterprise Agreement 2019 be approved as a registered agreement under the Fair Work Act. The decision was made on the basis that the agreement was fair and reasonable, met the statutory requirements, and provided appropriate protections for employees.

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