DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union
(AG2019/781)

ALLAN FAMILY TRUST (THE TRUSTEE FOR) T/AS NKA CAULKING AND THE CFMEU (VICTORIAN CONSTRUCTION AND GENERAL DIVISION) ENTERPRISE AGREEMENT 2016 -2018

Building, metal and civil construction industries
COMMISSIONER LEE	MELBOURNE, 1 APRIL 2019

Application for approval of the Allan Family Trust (The Trustee For) T/As NKA Caulking 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 Allan Family Trust (The Trustee For) T/As NKA Caulking 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 8 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 Construction, Forestry, Maritime, Mining and Energy Union, acting as the employer's representative, sought approval of the Allan Family Trust (trading as NKA Caulking) and the CFMEU (Victorian Construction and General Division) Enterprise Agreement 2016-2018. This application was heard in the Fair Work Commission. The dispute centred around the fairness and appropriateness of the agreement terms, which had been negotiated between the employer and the union. The union contended that the agreement was equitable and should be approved, while the employer argued that it was not appropriate for certain reasons.

The primary legal issue before the court was whether the enterprise agreement should be certified as an appropriate instrument for the purposes of the Fair Work Act 2009. The court had to assess the agreement's provisions against the criteria set out in the Act, considering factors such as whether it provided for fair and reasonable terms and conditions, whether it complied with the procedural requirements, and whether it was genuinely negotiated. The court also had to determine whether any provisions in the agreement were inconsistent with the overarching provisions of the Act.

In delivering its decision, the court found that the enterprise agreement contained provisions that were inconsistent with the overarching provisions of the Fair Work Act. Specifically, the court identified that certain provisions related to the classification of employees and the calculation of penalty rates were not consistent with the Act. As a result, the court concluded that the agreement was not an appropriate instrument for the purposes of the Act and could not be approved. The court's decision was based on a thorough analysis of the agreement's provisions and the relevant legal framework, as well as a consideration of the evidence and submissions presented by the parties.

As the court found that the enterprise agreement was not appropriate, it did not certify the agreement. The union's application for approval of the agreement was therefore dismissed. The court's decision has implications for the parties involved, as well as for the broader industrial relations landscape in Australia. The court's findings highlight the importance of ensuring that enterprise agreements comply with the legal framework and are genuinely negotiated between employers and 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