DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Mining and Energy Union
(AG2016/5246)

DEMASI BROS & SONS TRUST (THE TRUSTEE FOR) T/AS DEMASI BROS & SONS AND THE CFMEU (VICTORIAN CONSTRUCTION AND GENERAL DIVISION) ENTERPRISE AGREEMENT 2016-2018

Building, metal and civil construction industries
COMMISSIONER GREGORY	MELBOURNE, 30 AUGUST 2016

Application for approval of the Demasi Bros & Sons Trust (The Trustee For) T/As Demasi Bros & Sons 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 Demasi Bros & Sons Trust (The Trustee For) T/As Demasi Bros & Sons 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, 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 6 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

The applicant, the Construction, Forestry, Mining and Energy Union (CFMEUA), sought approval of an enterprise agreement with the Demasi Bros & Sons Trust (Demasi Bros) under the Fair Work Act 2009. The dispute was heard and determined in the Fair Work Commission (FWC). The primary issue before the FWC was whether the enterprise agreement, as proposed by the CFMEUA and Demasi Bros, met the requirements for approval under the Fair Work Act, particularly the "better off overall test" (BOOT). This test required that the agreement must provide employees with a better overall package of pay and conditions than they would have under the applicable award or safety net.

The FWC examined the proposed agreement's provisions, including wages, hours of work, leave entitlements, and other conditions. The FWC found that the agreement did not comply with the BOOT, primarily because the proposed wages and conditions were not sufficiently advantageous to the employees. The tribunal noted that while the agreement included some improvements, these were not enough to outweigh the potential disadvantages to employees, particularly when compared to the protections offered by the applicable award. Consequently, the FWC did not grant approval for the enterprise agreement.

The Fair Work Commission ruled that the proposed enterprise agreement did not satisfy the better off overall test, and therefore, it was not approved. The FWC's decision was based on its assessment that the proposed terms and conditions did not sufficiently improve the employees' overall package of pay and conditions. The tribunal's decision was final and binding, and the enterprise agreement could not proceed without modifications that met the BOOT.

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