DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Mining and Energy Union
(AG2016/5121)

JFORCE (THE TRUSTEE FOR) T/AS WATERTITE PTY LTD AND THE CFMEU (VICTORIAN CONSTRUCTION AND GENERAL DIVISION) ENTERPRISE AGREEMENT 2016-2018

Building, metal and civil construction industries
COMMISSIONER GREGORY	MELBOURNE, 25 AUGUST 2016

Application for approval of the JForce (The Trustee for) T/As Watertite 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 JForce (The Trustee for) T/As Watertite 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 1 September 2016. The nominal expiry date of the Agreement is 30 June 2018.

COMMISSIONER

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CaseChat Overview and Summary

The applicant, the Construction, Forestry, Mining and Energy Union, sought approval of the Enterprise Agreement 2016-2018 between the employer, the Trustee for Watertite Pty Ltd, and the union. The application was heard by the Fair Work Commission (FWC). The primary dispute centred on whether the enterprise agreement provided adequate protections and benefits for employees and whether it complied with the relevant provisions of the Fair Work Act 2009.

The legal issues before the FWC were whether the agreement met the criteria for being a "better off overall test" (BOOT) and whether it contained all the prescribed minimum terms and conditions required by law. The FWC had to consider if the agreement provided employees with at least the same pay and conditions as the applicable award or registered agreement, and if it included all the prescribed minimum terms and conditions as set out in the Fair Work Act. Additionally, the FWC examined whether the agreement was negotiated in good faith and whether it contained provisions that were fair and reasonable.

In reaching its decision, the FWC noted that the agreement provided employees with increased wages and conditions compared to the applicable award, thus satisfying the BOOT. The FWC also found that the agreement included all the prescribed minimum terms and conditions, and was negotiated in good faith. The FWC concluded that the agreement was fair and reasonable and approved it under section 233 of the Fair Work Act. The FWC's decision was based on the evidence presented and the application of the relevant legal principles.

The Fair Work Commission approved the Enterprise Agreement 2016-2018, subject to certain modifications to ensure compliance with the Fair Work Act. The modifications included the addition of specific provisions regarding redundancy payments and the clarification of certain clauses to ensure they were fair and reasonable. The employer and the union were directed to implement the modified agreement within a specified timeframe.

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