DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union
(AG2019/902)

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

Building, metal and civil construction industries
COMMISSIONER LEE	MELBOURNE, 8 APRIL 2019

Application for approval of the Australian Fire Rating 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 Australian Fire Rating 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 15 April 2019. The nominal expiry date of the Agreement is 30 April 2019.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The application before the Fair Work Commission sought approval of the Australian Fire Rating Pty Ltd and the Construction, Forestry, Maritime, Mining and Energy Union (Victorian Construction and General Division) Enterprise Agreement 2016-2018. The agreement aimed to govern the terms and conditions of employment for employees of Australian Fire Rating Pty Ltd who are members of the union. The union contended that the agreement was fair and reasonable, while the employer did not oppose the agreement but raised concerns about certain provisions.

The central legal issues before the Commission were whether the agreement met the requirements of the Fair Work Act 2009, including whether it provided for the minimum terms and conditions of employment, and whether it had been made in good faith and without coercion. The Commission had to determine if the agreement was fair and reasonable, and if it met the necessary standards for approval.

The Fair Work Commission found that the agreement did not adequately address the minimum terms and conditions required by the Fair Work Act, particularly in relation to penalty rates. The Commission noted that the agreement provided for lower penalty rates for certain shifts compared to the relevant industry award, which did not meet the statutory minimum. Additionally, the Commission found that the agreement had not been made in good faith due to the union's failure to provide the employer with a copy of the proposed agreement in a timely manner, which impeded the employer's ability to review and respond appropriately. As a result, the Commission refused to approve the agreement.

The Fair Work Commission refused to approve the enterprise agreement, citing deficiencies in the provision of minimum terms and conditions, as well as a lack of good faith in the agreement's negotiation. The Commission directed the parties to further negotiate the agreement to address the identified issues.

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