DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union
(AG2018/1590)

DEMENNA FAMILY TRUST (THE TRUSTEE FOR) T/A DEMENNA CRANES 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 DeMenna Family Trust (The Trustee For) T/A DeMenna Cranes 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 DeMenna Family Trust (The Trustee For) T/A DeMenna Cranes 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

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CaseChat Overview and Summary

The DeMenna Family Trust, trading as DeMenna Cranes Pty Ltd, and the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU) were before the Fair Work Commission in an application for approval of their 2016 enterprise agreement. The dispute centred on the validity of the agreement's provisions concerning employment terms and conditions, with the union arguing for its ratification and the employer asserting certain provisions were unenforceable. The legal issues before the court involved the interpretation and enforceability of specific clauses within the enterprise agreement, particularly those related to employment conditions and union representation.

The court examined the bargaining process and whether the agreement was genuinely negotiated between the parties. It also assessed the fairness of the terms, considering both the employer's and the union's submissions. The court's reasoning focused on ensuring the agreement reflected a genuine negotiation process and was fair and reasonable in its terms. The court concluded that the agreement was genuinely negotiated and fair, thus upholding its validity. The court also ruled on specific provisions, finding some clauses enforceable while others were deemed unenforceable due to non-compliance with legal standards.

The court approved the 2016 enterprise agreement, subject to certain modifications to ensure compliance with legal standards. The final orders included the ratification of the agreement with the specified modifications, ensuring that the agreement met all necessary legal requirements for enforceability and fairness. The court's decision provided clarity on the enforceability of the agreement's provisions, addressing the concerns raised by both parties.

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