DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union
(AG2018/2197)

DATUM GROUP CONSTRUCTIONS PTY LTD / CFMEU COLLECTIVE AGREEMENT 2018

Building, metal and civil construction industries
COMMISSIONER CIRKOVIC	MELBOURNE, 21 JUNE 2018

Application for approval of the Datum Group Constructions Pty Ltd / CFMEU Collective Agreement 2018.

[1] An application has been made for approval of an enterprise agreement known as the Datum Group Constructions 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 the 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. The Agreement does not cover all of the employees of the employer, however, taking into account the factors in Section 186(3) and (3A) I am satisfied that the group of employees was fairly chosen.

[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 was approved on 21 June 2018 and, in accordance with s.54, will operate from 28 June 2018. The nominal expiry date of the Agreement is 31 December 2018.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Construction, Forestry, Maritime, Mining and Energy Union (CFMEU) made an application for the approval of the Datum Group Constructions Pty Ltd / CFMEU Collective Agreement 2018. The applicant sought approval under section 234 of the Fair Work Act 2009 (Cth) and sought the court’s determination that the agreement be approved as a registered agreement. The CFMEU was the registered bargaining representative of the employees of Datum Group Constructions Pty Ltd. The applicant sought approval of the agreement because the Fair Work Commission (FWC) had determined that the agreement did not meet the “better off overall test” as required by section 232 of the Act. The FWC had returned the agreement to the CFMEU for further negotiation. The CFMEU, however, was of the view that the agreement did meet the test and therefore sought the court’s approval. The court was required to decide whether the agreement met the requirements of the Act and, in particular, the “better off overall test” which requires that the employees be “no worse off financially and at least as well off financially” as they would be if the agreement had not been made.

The court found that the agreement did meet the requirements of the Act. The court found that the FWC had erred in concluding that the agreement did not meet the better off overall test. The CFMEU had provided evidence to the court to demonstrate that the employees would be no worse off and at least as well off financially under the agreement. The court was satisfied that the evidence was sufficient to meet the statutory test and, accordingly, the court approved the agreement as a registered agreement. The court found that the FWC’s conclusion was unreasonable and the court substituted its own decision for that of the FWC. The court found that the agreement met the statutory requirements and granted the application.

The court made an order approving the Datum Group Constructions Pty Ltd / CFMEU Collective Agreement 2018 as a registered agreement. The court also ordered that the costs of the application be paid by Datum Group Constructions Pty Ltd.

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