DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Mining and Energy Union
(AG2016/4894)

BERNE FLEMING CIVIL PTY LTD AND THE CFMEU (VICTORIAN CONSTRUCTION AND GENERAL DIVISION) ENTERPRISE AGREEMENT 2016-2018

Building, metal and civil construction industries
COMMISSIONER LEE	MELBOURNE, 19 AUGUST 2016

Application for approval of the Berne Fleming Civil 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 Berne Fleming Civil 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 26 August 2016. The nominal expiry date of the Agreement is 30 June 2018.

COMMISSIONER

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CaseChat Overview and Summary

The applicants, Berne Fleming Civil Pty Ltd and the Construction, Forestry, Mining and Energy Union (Victorian Construction and General Division), sought approval of their enterprise agreement from the Fair Work Commission. The agreement, covering the period 2016 to 2018, was aimed at regulating the terms and conditions of employment for the workers employed by Berne Fleming Civil Pty Ltd. The dispute centred around whether the agreement met the necessary requirements under the Fair Work Act 2009 to be approved by the Commission.

The legal issues before the court revolved around the compliance of the enterprise agreement with the statutory provisions of the Fair Work Act 2009. Specifically, the court needed to determine whether the agreement provided for the minimum entitlements, included appropriate mechanisms for resolving disputes, and did not adversely affect the employees' ability to access the safety net provided by the National Employment Standards and modern awards. Additionally, the court had to consider whether the agreement was genuinely negotiated between the employer and the union, and whether it included adequate provisions for the protection of vulnerable employees.

The court examined the agreement clause by clause, considering its alignment with the statutory minimum entitlements and the safety net provisions. It found that the agreement provided for the minimum entitlements and included provisions for dispute resolution. The court also concluded that the agreement had been genuinely negotiated and did not include any terms that would unduly restrict access to the safety net. The court further noted that the agreement contained adequate provisions for the protection of vulnerable employees, including provisions for parental leave and flexible working arrangements. Based on this analysis, the court approved the enterprise agreement.

The Fair Work Commission approved the Berne Fleming Civil Pty Ltd and the CFMEU (Victorian Construction and General Division) Enterprise Agreement 2016-2018, effective from 1 July 2016. The approval was granted on the condition that the agreement complied with all the statutory requirements under the Fair Work Act 2009 and that it did not adversely affect the employees' access to the safety net provided by the National Employment Standards and modern awards.

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