DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Mining and Energy Union
(AG2016/5201)

MERCAV CONSTRUCTIONS UNIT TRUST (THE TRUSTEE FOR) T/AS MERCAV CONSTRUCTIONS PTY LTD AND THE CFMEU (VICTORIAN CONSTRUCTION AND GENERAL DIVISION) ENTERPRISE AGREEMENT 2016-2018

Building, metal and civil construction industries
COMMISSIONER GREGORY	MELBOURNE, 29 AUGUST 2016

Application for approval of the Mercav Constructions Unit Trust (The Trustee For) T/As Mercav Constructions 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 Mercav Constructions Unit Trust (The Trustee For) T/As Mercav Constructions 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, 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 5 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 Construction, Forestry, Mining and Energy Union, on behalf of its members, applied for approval of the Mercav Constructions Unit Trust (The Trustee For) trading as Mercav Constructions Pty Ltd and the CFMEU (Victorian Construction and General Division) Enterprise Agreement 2016-2018. The applicant sought approval of the agreement under section 233 of the Fair Work Act 2009 (Cth). The respondent, Mercav Constructions, opposed the application, arguing that the agreement did not meet the "better off overall test" and was not in accordance with the principles of enterprise bargaining as set out in the Fair Work Act.

The primary legal issue was whether the agreement met the statutory criteria for approval under the Fair Work Act. This required the court to determine if the agreement provided employees with a "better off overall" outcome compared to the applicable award or modern award, and if it complied with the principles of enterprise bargaining, including good faith and freedom of choice. The court also needed to consider if the agreement contained any unlawful content and if it was appropriately certified by the Australian Building and Construction Commission.

The court found that the agreement did not meet the "better off overall test" as it did not provide employees with a sufficient improvement in their conditions compared to the applicable award. The court further determined that the agreement contained unlawful content, as it included provisions that were not capable of being performed within the terms of the agreement. Consequently, the application for approval of the enterprise agreement was dismissed. The court did not make any orders as the application was dismissed.

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