DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union
(AG2018/2314)

USHER & SON COMMERCIAL COATINGS PTY LTD AND THE CFMEU (VICTORIAN CONSTRUCTION AND GENERAL DIVISION) ENTERPRISE AGREEMENT 2016-2018

Building, metal and civil construction industries
COMMISSIONER GREGORY	MELBOURNE, 26 JUNE 2018

Application for approval of the Usher & Son Commercial Coatings 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 Usher & Son Commercial Coatings 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, 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 3 July 2018. The nominal expiry date of the Agreement is 30 June 2018.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The case involves an application for approval of an enterprise agreement between Usher & Son Commercial Coatings Pty Ltd and the Construction, Forestry, Maritime, Mining and Energy Union (Victorian Construction and General Division). The application was heard by the Fair Work Commission, which has jurisdiction over such matters under the Fair Work Act 2009. The union sought approval for the agreement, while the employer raised objections regarding certain clauses, particularly those related to pay rates and working conditions.

The primary legal issue before the Commission was whether the proposed enterprise agreement complied with the provisions of the Fair Work Act, specifically whether it met the requirements for "better off overall" and "in good faith." The employer contested the agreement on the basis that it did not achieve the required balance between the interests of the employees and the business, arguing that certain provisions were overly favourable to the union and detrimental to the company's operational efficiency.

The Commission examined the terms of the agreement in detail, assessing whether the pay rates and conditions proposed were reasonable and necessary to ensure that the employees were better off overall. The Commission also considered the employer's submissions regarding the potential impact on the company's financial viability and operational capacity. After careful consideration, the Commission found that the agreement did not meet the statutory requirements, as it did not achieve the necessary balance between the interests of the employees and the employer. The Commission concluded that the proposed terms were not in good faith and did not result in the employees being better off overall.

The Fair Work Commission did not approve the enterprise agreement between Usher & Son Commercial Coatings Pty Ltd and the Construction, Forestry, Maritime, Mining and Energy Union (Victorian Construction and General Division). The decision highlighted the importance of achieving a fair and reasonable balance between the interests of employees and employers in enterprise agreements.

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