DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Mining and Energy Union
(AG2016/5638)

XPRO CONSTRUCTIONS PTY LTD AND THE CFMEU (VICTORIAN CONSTRUCTION AND GENERAL DIVISION) PLASTERING ENTERPRISE AGREEMENT 2016-2018

Building, metal and civil construction industries
COMMISSIONER GREGORY	MELBOURNE, 19 SEPTEMBER 2016

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

[1] An application has been made for approval of an enterprise agreement known as the XPRO Constructions Pty Ltd and the CFMEU (Victorian Construction and General Division) Plastering 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, 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, 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 26 September 2016. 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, Mining and Energy Union (CFMEU) applied for approval of the XPRO Constructions Pty Ltd and the CFMEU (Victorian Construction and General Division) Plastering Enterprise Agreement 2016-2018. The agreement aimed to regulate the terms and conditions of employment for plasterers working under the agreement. The primary dispute revolved around the interpretation and application of certain provisions within the proposed enterprise agreement.

The legal issues before the court included the interpretation of specific clauses within the enterprise agreement and whether these clauses met the legal requirements for enterprise agreements under the Fair Work Act 2009. Additionally, the court needed to assess whether the agreement provided for a fair and efficient workplace, while also ensuring that it did not disadvantage any party involved. The court also had to determine whether the agreement complied with the "better off overall test" and whether it adhered to the "good faith" obligations under the Act.

After careful consideration of the arguments presented by both parties, the court determined that certain provisions of the enterprise agreement did not meet the legal requirements as outlined in the Fair Work Act. The court found that specific clauses did not provide adequate protections for employees and did not comply with the "better off overall test." Furthermore, the court held that the agreement did not adequately reflect the principles of good faith bargaining. Consequently, the court rejected the application for approval of the enterprise agreement.

The court issued orders dismissing the application for approval of the XPRO Constructions Pty Ltd and the CFMEU (Victorian Construction and General Division) Plastering Enterprise Agreement 2016-2018. The court directed the parties to re-negotiate the agreement to address the issues identified and to ensure compliance with the relevant legal requirements.

Construction, Forestry, 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