Construction, Forestry, Maritime, Mining and Energy Union Summary

[2018] FWCA 4945

FAIR WORK COMMISSION

decision

Fair Work Act 2009

s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union

(AG2018/3690)

Smith & Osborne (Vic) Pty Ltd T/As Megasaw and the CFMEU (Victorian Construction and General Division) Concrete Sawing and Drilling Enterprise Agreement 2016 -2018

Building, metal and civil construction industries
Commissioner Wilson	Melbourne, 24 August 2018

Application for approval of the SMITH & OSBORNE (VIC) PTY LTD T/As MEGASAW and the CFMEU (Victorian Construction and General Division) Concrete Sawing and Drilling Enterprise Agreement 2016 -2018.

An application has been made for approval of an enterprise agreement known as the SMITH & OSBORNE (VIC) PTY LTD T/As MEGASAW and the CFMEU (Victorian Construction and General Division) Concrete Sawing and Drilling 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.

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.

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.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 31 August 2018. The nominal expiry date of the Agreement is 30 September 2018.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The matter before the Fair Work Commission involved an application for the approval of the Enterprise Agreement between Smith & Osborne (Vic) Pty Ltd trading as Megasaw and the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU), specifically concerning the Concrete Sawing and Drilling Enterprise Agreement 2016-2018. The agreement was subject to scrutiny to ensure compliance with the Fair Work Act 2009 and the Fair Work Regulations 2009. The Commission was tasked with determining whether the agreement met the necessary criteria for approval, including that it provided for the terms and conditions of employment, did not discriminate unfairly, and was free from provisions that could adversely affect employees.

The central legal issues before the Commission were whether the agreement provided for a safety net of minimum terms and conditions, allowed for genuine bargaining between the parties, and did not contain any provisions that could be seen as unfair or discriminatory. Additionally, the Commission had to consider whether the agreement included appropriate dispute resolution mechanisms and if it provided for terms and conditions that were no less favourable than the relevant modern award. The Commission also had to verify that the agreement was appropriately certified and that any necessary information had been provided to employees.

In reaching its decision, the Commission examined the content of the agreement, the process by which it was negotiated, and the certification provided by the CFMEU. The Commission found that the agreement met all the statutory requirements for approval. It was comprehensive in its coverage of employment terms and conditions, allowed for genuine bargaining, did not unfairly discriminate, and included adequate dispute resolution processes. The agreement was deemed to provide for a safety net of minimum terms and conditions and did not contain any provisions that could be considered unfair. The Commission was satisfied that all necessary information had been provided to employees and that the agreement had been certified appropriately.

Consequently, the Fair Work Commission approved the Concrete Sawing and Drilling Enterprise Agreement 2016-2018 between Smith & Osborne (Vic) Pty Ltd trading as Megasaw and the CFMEU. The agreement was found to comply with the relevant provisions of the Fair Work Act and Regulations, and it was therefore approved as a valid and enforceable enterprise agreement.

Construction, Forestry, Maritime, Mining and Energy Union

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established