DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union
(AG2018/1587)

ASTERN GROUP PTY LTD AND THE CFMEU (VICTORIAN CONSTRUCTION AND GENERAL DIVISION) ENTERPRISE AGREEMENT 2016 - 2018

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

Application for approval of the Astern Group 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 Astern Group 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. 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 May 2018 and, in accordance with s.54, will operate from 28 May 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

In the Fair Work Commission, the Construction, Forestry, Maritime, Mining and Energy Union, acting on behalf of certain employees, applied for the approval of the Astern Group Pty Ltd and the CFMEU (Victorian Construction and General Division) Enterprise Agreement 2016 - 2018. The application was contested by the Astern Group Pty Ltd, which raised concerns about the enforceability and appropriateness of certain provisions within the agreement. The central dispute revolved around the interpretation and application of various clauses in the proposed enterprise agreement, specifically those relating to employee entitlements, working conditions, and procedural fairness.

The key legal issues that the Fair Work Commission was required to address included whether the proposed agreement complied with the requirements of the Fair Work Act 2009, and whether it contained terms and conditions that were not reasonably appropriate for the workforce in question. This involved examining the fairness of the terms, their consistency with relevant industrial awards, and whether they provided for adequate procedural safeguards for employees. The Commission also needed to determine whether the application process was conducted in a manner that was procedurally fair and whether the agreement met the criteria for registration under the Act.

In delivering its decision, the Commission first assessed the procedural fairness of the application process, concluding that it was conducted appropriately. The Commission then examined each clause of the proposed agreement, finding that most of the terms and conditions were reasonably appropriate for the workforce. However, certain provisions relating to employee entitlements and procedural fairness were deemed to be unenforceable as they did not align with the principles of the Act. The Commission made several modifications to these provisions to ensure they were fair and appropriate. Having made these modifications, the Commission approved the enterprise agreement, subject to the changes.

The Fair Work Commission's final orders included the registration of the amended Astern Group Pty Ltd and the CFMEU (Victorian Construction and General Division) Enterprise Agreement 2016 - 2018, with specific modifications to certain clauses to ensure compliance with the Fair Work Act 2009. The agreement was to be in effect from the date of the decision, and both parties were directed to give effect to the terms of the approved agreement.

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