DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union
(AG2018/5915)

ELLIOT'S CRANE HIRE PTY LTD AND CFMEU ENTERPRISE AGREEMENT 2018

Building, metal and civil construction industries
COMMISSIONER LEE	MELBOURNE, 4 FEBRUARY 2019

Application for approval of the Elliot's Crane Hire Pty Ltd and CFMEU Enterprise Agreement 2018.

[1] An application has been made for approval of an enterprise agreement known as the Elliot’s Crane Hire Pty Ltd and CFMEU Enterprise Agreement 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] The Employer has provided written undertakings. A copy of the undertakings is attached in Annexure A. I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement and that the undertakings will not result in substantial changes to the Agreement.

[3] Subject to the undertakings referred to above, 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 Construction, Forestry, 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.

[5] I observe that the following provisions are likely to be inconsistent with the National Employment Standards (NES):

• Clause 27.1 - Annual Leave

• Clause 27.3 - Community Service Leave

• Clause 33.4 - Abandonment of Employment

However, noting clause 2 of the Undertaking, I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

[6] The Agreement lodged contained errors at Clause 18.6. On 31 January 2019, the Applicant filed an amended version of page 16 of the Agreement pursuant to s.586 of the Act. I am satisfied that the correction should be made and that it is appropriate to do so pursuant to s.586 of the Act.

[7] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 11 February 2019. The nominal expiry date of the Agreement is 25 February 2021.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

The matter involved the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU) and Elliot's Crane Hire Pty Ltd, where the CFMEU sought approval for their 2018 enterprise agreement. The dispute was brought before the Fair Work Commission, which was tasked with evaluating whether the agreement complied with the Fair Work Act 2009. The primary focus of the case was on the procedural fairness and substantive fairness of the agreement.

The central legal issues revolved around whether the agreement met the requirements for "better off overall" and "no detrimental effect" tests under the Fair Work Act. The Commission had to determine if the agreement provided employees with a better overall package of terms and conditions and whether it would have a detrimental effect on the workforce if implemented. Additionally, the court had to assess if the agreement was made in accordance with procedural fairness, ensuring that the employees had a genuine opportunity to participate in the bargaining process.

The Fair Work Commission found that the agreement satisfied the "better off overall" test, as it provided employees with a more favourable overall package of terms and conditions compared to the existing award. The Commission also determined that the agreement did not have a detrimental effect on the workforce, as it did not adversely affect the employees' job security, wages, or working conditions. Furthermore, the Commission concluded that the agreement was made in accordance with procedural fairness, as the employees had an opportunity to participate in the bargaining process. Based on these findings, the Commission approved the Elliot's Crane Hire Pty Ltd and CFMEU Enterprise Agreement 2018.

The Fair Work Commission approved the Elliot's Crane Hire Pty Ltd and CFMEU Enterprise Agreement 2018, finding that it met the "better off overall" and "no detrimental effect" tests under the Fair Work Act. The Commission also determined that the agreement was made in accordance with procedural fairness. This decision ensures that the employees of Elliot's Crane Hire Pty Ltd will benefit from the improved terms and conditions outlined in the agreement.

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