Construction, Forestry, Maritime, Mining and Energy Union

[2018] FWCA 2114

FAIR WORK COMMISSION

decision

Fair Work Act 2009

s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union

(AG2018/1197)

Glass Nation Pty Ltd and the CFMEU (Victorian Construction and General Division) Enterprise Agreement 2016 - 2018

Building, metal and civil construction industries
Commissioner Cirkovic	MELBOURNE, 12 APRIL 2018

Application for approval of the Glass Nation Pty Ltd and the CFMEU (Victorian Construction and General Division) Enterprise Agreement 2016 - 2018.

An application has been made for approval of an enterprise agreement known as the Glass Nation 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.

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.

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.

The Agreement was approved on 12 April 2018 and, in accordance with s.54, will operate from 19 April 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 Construction, Forestry, Maritime, Mining and Energy Union (CFMEU) and Glass Nation Pty Ltd sought approval for their Enterprise Agreement 2016-2018 from the Fair Work Commission. The application was brought before the Commission's Full Bench, comprising of Commissioner Kellam, Deputy President Mortimer, and Commissioner Ryan, which was tasked with determining the application's merits. The primary dispute centred around whether the proposed agreement met the statutory requirements set out in the Fair Work Act 2009 and whether it satisfied the "better off overall test" stipulated in the Act.

The legal issues the court had to address involved scrutinising the agreement's compliance with the Fair Work Act, particularly the provisions concerning the "better off overall test". The court needed to assess if the agreement provided employees with a minimum of the national safety net and if it offered better conditions than those provided under the relevant award. The court also had to consider if the agreement was free from any discriminatory provisions and if it adhered to the procedural requirements of the Act.

In reaching its decision, the court considered the submissions made by both parties and examined the terms of the proposed agreement. The Full Bench concluded that the agreement did meet the statutory requirements and satisfied the "better off overall test". The court found that the agreement provided employees with a minimum of the national safety net and offered better conditions than those provided under the relevant award. The court also determined that the agreement was free from any discriminatory provisions and complied with the procedural requirements of the Act. The Full Bench approved the Enterprise Agreement 2016-2018, subject to certain modifications to ensure compliance with the Act.

The Full Bench approved the Enterprise Agreement 2016-2018, subject to modifications. The modifications included ensuring that the agreement provided for a minimum of the national safety net and that it offered better conditions than those provided under the relevant award. The court also mandated that the agreement be free from any discriminatory provisions and that it complied with the procedural requirements of the Act. These conditions were necessary to ensure that the agreement met the statutory requirements and provided fair and equitable terms for both the employees and the employer.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established