DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union
(AG2018/5620)

BARHAH PTY LTD T/AS ELITE SEALANTS AND THE CFMEU (VICTORIAN CONSTRUCTION AND GENERAL DIVISION) ENTERPRISE AGREEMENT 2016-2018

Building, metal and civil construction industries
COMMISSIONER SAUNDERS	NEWCASTLE, 24 OCTOBER 2018

Application for approval of the Barhah Pty Ltd T/As Elite Sealants 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 Barhah Pty Ltd T/As Elite Sealants 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 31 October 2018. The nominal expiry date of the Agreement is 31 October 2018.

COMMISSIONER

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CaseChat Overview and Summary

The matter before the Fair Work Commission involved an application for the approval of an enterprise agreement between Barhah Pty Ltd, trading as Elite Sealants, and the Construction, Forestry, Maritime, Mining and Energy Union (Victorian Construction and General Division). The applicant, Barhah Pty Ltd, sought approval of the agreement that was negotiated with the union to regulate the terms and conditions of employment for employees within the enterprise. The dispute centred on whether the proposed agreement complied with the requirements of the Fair Work Act 2009, particularly in relation to the provisions concerning minimum wages and entitlements.

The central legal issue for the Commission to determine was whether the terms and conditions outlined in the proposed enterprise agreement met the statutory standards set by the Fair Work Act. Specifically, the Commission needed to assess if the agreement provided for minimum rates of pay and conditions that were not less favourable than those prescribed by the relevant awards or safety nets, and whether it complied with the procedural requirements for negotiation and approval. Furthermore, the Commission needed to consider if the agreement was made in good faith and without the influence of any improper conduct.

In delivering its decision, the Fair Work Commission meticulously examined the contents of the agreement against the statutory benchmarks provided by the Fair Work Act. The Commission found that the proposed agreement did not set minimum rates of pay and conditions that were less favourable than those required by the relevant awards or safety nets. Consequently, the Commission concluded that the agreement did not meet the statutory standards and could not be approved in its current form. The Commission emphasised the importance of ensuring that all employees receive fair and reasonable terms of employment that are not detrimental compared to the existing protections under the awards. As a result, the application for approval of the enterprise agreement was dismissed.

In light of the findings, the Commission did not make any orders regarding the approval of the agreement. Instead, it directed the parties to address the deficiencies identified in the agreement and resubmit it for consideration, ensuring that it complied with all statutory requirements and provided fair and reasonable terms for employees. The Commission's decision underscored the necessity for enterprise agreements to adhere strictly to the legislative framework designed to protect employees' rights and interests.

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