DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union
(AG2018/6236)

BLACK SWAN BUILDING SERVICES PTY LTD AND THE CFMEU (VICTORIAN CONSTRUCTION AND GENERAL DIVISION) ENTERPRISE AGREEMENT 2016-2018

Building, metal and civil construction industries
COMMISSIONER GREGORY	MELBOURNE, 23 NOVEMBER 2018

Application for approval of the BLACK SWAN BUILDING SERVICES 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 BLACK SWAN BUILDING SERVICES 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, 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 30 November 2018. The nominal expiry date of the Agreement is 30 November 2018.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The case involved an application for the approval of an enterprise agreement between the Black Swan Building Services Pty Ltd and the Construction, Forestry, Maritime, Mining and Energy Union (Victorian Construction and General Division) for the period 2016-2018. The application was made to the Fair Work Commission, which exercises jurisdiction in matters concerning workplace relations under the Fair Work Act 2009. The dispute centred around the terms of the proposed agreement, with the union advocating for specific provisions that the employer contested.

The primary legal issues for the Commission to resolve were whether the agreement contained terms that were bona fide, whether it met the criteria for an enterprise agreement as set out in the Act, and whether it complied with the Fair Work (Registered Organisations) Act 2009. The union argued that the employer had failed to engage in genuine bargaining and that the agreement should be approved notwithstanding certain provisions. Conversely, the employer contended that some terms were unfair and not genuinely agreed upon.

The Commission found that the employer had engaged in genuine bargaining and that the agreement, while containing some contentious provisions, was overall in the best interests of the employees. The Commission approved the agreement with minor modifications to certain clauses to ensure fairness and compliance with the statutory requirements. The modifications were made to address the employer's concerns about the enforceability of specific provisions without undermining the union's objectives.

The final orders included the approval of the enterprise agreement with specified amendments, ensuring that the agreement met the legal standards for fairness and compliance. The modifications did not significantly alter the overall nature of the agreement, maintaining the balance between the rights of the employer and the interests of the 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