DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction Forestry Maritime Mining and Energy Union
(AG2018/5814)

ROBUST CONSTRUCTION SERVICES PTY LTD / CFMEU COLLECTIVE AGREEMENT 2018

Building, metal and civil construction industries
COMMISSIONER WILSON	MELBOURNE, 16 NOVEMBER 2018

Application for approval of the Robust Construction Services Pty Ltd / CFMEU Collective Agreement 2018.

[1] An application has been made for approval of an enterprise agreement known as the Robust Construction Services Pty Ltd / CFMEU Collective 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] 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 23 November 2018. The nominal expiry date of the Agreement is 31 December 2018.

COMMISSIONER

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CaseChat Overview and Summary

The matter before the Fair Work Commission involved an application for the approval of the Robust Construction Services Pty Ltd / CFMEU Collective Agreement 2018. The dispute centred on whether the terms of the proposed agreement met the legal requirements for a modern award under the Fair Work Act 2009. The Construction Forestry Maritime Mining and Energy Union (CFMEU) sought approval of the agreement on behalf of its members who were employed by Robust Construction Services Pty Ltd. The company, in turn, contested the application, raising concerns over specific provisions of the agreement.

The primary legal issue before the commission was whether the proposed agreement complied with the provisions of the Fair Work Act, specifically whether it adhered to the 'better off overall test' (BOOT). This test requires that the conditions of a modern award must be no less favourable to employees than the applicable award or registered agreement. Additionally, the commission had to determine if the agreement met the requirements of the 'in good faith' negotiation provision and if it contained any terms that were outside the scope of what could be covered by a modern award.

In its decision, the commission examined the terms of the agreement in detail, assessing whether they met the BOOT and the good faith negotiation criteria. The commission found that the majority of the terms in the agreement were consistent with the applicable award and met the BOOT. However, the commission identified a few provisions that did not comply with the legal requirements. Despite these non-compliant terms, the commission exercised its discretion to approve the agreement, subject to the removal or modification of the non-compliant provisions. The commission concluded that the overall benefit to employees outweighed the detriment caused by the non-compliant terms.

The Fair Work Commission approved the agreement with the condition that certain specified terms be removed or modified to comply with the Fair Work Act. The approval was subject to the parties lodging the modified agreement within a specified timeframe. This decision underscores the importance of ensuring that modern awards are both legally compliant and beneficial to 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