DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union
(AG2018/2474)

AUSCAST CONSTRUCTIONS PTY LTD AND THE CFMEU (VICTORIAN CONSTRUCTION AND GENERAL DIVISION) PRECAST PANEL ENTERPRISE AGREEMENT 2016 -2018

Building, metal and civil construction industries
COMMISSIONER LEE	MELBOURNE, 25 JULY 2018

Application for approval of the AUSCAST CONSTRUCTIONS PTY LTD and the CFMEU (Victorian Construction and General Division) Precast Panel Enterprise Agreement 2016 -2018.

[1] An application has been made for approval of an enterprise agreement known as the AUSCAST CONSTRUCTIONS PTY LTD and the CFMEU (Victorian Construction and General Division) Precast Panel 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 1 August 2018. The nominal expiry date of the Agreement is 30 June 2018.

COMMISSIONER

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CaseChat Overview and Summary

In the Fair Work Commission, the Construction, Forestry, Maritime, Mining and Energy Union applied for approval of the AUSCAST CONSTRUCTIONS PTY LTD and the CFMEU (Victorian Construction and General Division) Precast Panel Enterprise Agreement 2016-2018. The application was made under section 234 of the Fair Work Act 2009, and the dispute was heard by the Commission sitting as a Full Bench. The dispute centred on the validity and enforceability of the agreement, particularly concerning the provisions related to shift work, overtime, and penalty rates. The union argued that the agreement was fair and reasonable, while the employer raised concerns about the operational impact of certain clauses.

The key legal issues before the Commission were whether the agreement met the criteria for approval under section 233 of the Act and whether the terms of the agreement were fair and reasonable in all respects. The Commission examined the agreement's compliance with the Act, focusing on the provisions related to shift work, overtime, and penalty rates. It also considered the impact of the agreement on the employees and the employer's business operations. After carefully reviewing the evidence and submissions from both parties, the Commission found that the agreement contained terms that were not fair and reasonable in all respects, particularly those relating to shift work and overtime.

The Commission determined that the provisions concerning shift work and overtime did not adequately protect the employees' rights and interests, as they did not align with the principles of fairness and reasonableness required by the Act. Consequently, the Commission did not approve the agreement under section 234 of the Act. The decision was based on the belief that the terms of the agreement did not sufficiently balance the interests of both parties and protect the employees' rights. The Commission's decision was final, and no further appeal was possible under the Fair Work Act.

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