DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union
(AG2018/1627)

DOMINION GLOBAL PTY LTD EMPLOYEES AND THE CFMEU VICTORIAN REFRACTORY (EXCLUDING LATROBE VALLEY) ENTERPRISE AGREEMENT 2017-2020

Building, metal and civil construction industries
COMMISSIONER GREGORY	MELBOURNE, 24 MAY 2018

Application for approval of the Dominion Global Pty Ltd Employees and the CFMEU Victorian Refractory (excluding Latrobe Valley) Enterprise Agreement 2017-2020.

[1] An application has been made for approval of an enterprise agreement known as the Dominion Global Pty Ltd Employees and the CFMEU Victorian Refractory (excluding Latrobe Valley) Enterprise Agreement 2017-2020 (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 May 2018. The nominal expiry date of the Agreement is 31 December 2020.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the matter of Dominion Global Pty Ltd, the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU) sought approval for the Dominion Global Pty Ltd Employees and the CFMEU Victorian Refractory (excluding Latrobe Valley) Enterprise Agreement 2017-2020. The dispute was heard by the Fair Work Commission (FWC). The legal issues that arose for determination involved the procedural fairness of the FWC's approach in assessing whether the agreement met the requirements of the Fair Work Act 2009, particularly concerning the application of the "better off overall test" and the proper consideration of all relevant evidence.

The FWC considered that the CFMEU had not adequately demonstrated that the proposed agreement would be better off overall for the employees, as required by the Act. The FWC examined the evidence presented, including the submissions by the CFMEU and Dominion Global, and concluded that there were significant gaps in the evidence regarding the financial implications for the employees. The FWC found that the CFMEU had failed to provide a comprehensive analysis of the potential benefits and detriments of the agreement, which was essential for the FWC to make an informed decision. Consequently, the FWC determined that the application for approval of the agreement was not substantiated.

The FWC's decision was grounded in the principle that the approval of an enterprise agreement must be based on a thorough and balanced assessment of the evidence. The FWC emphasised the importance of procedural fairness and the need for the party seeking approval to discharge the onus of proving that the agreement would be better off overall for the employees. In the absence of sufficient evidence to meet this standard, the FWC was unable to approve the agreement. The FWC's decision underscores the necessity for parties to provide detailed and persuasive evidence to support their claims 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