DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Mining and Energy Union
(AG2016/5003)

UNITED PRECAST (VIC) PTY LTD AND THE CFMEU (VICTORIAN CONSTRUCTION AND GENERAL DIVISION) PRECAST PANEL ENTERPRISE AGREEMENT 2016-2018

Building, metal and civil construction industries
COMMISSIONER ROE	SYDNEY, 15 AUGUST 2016

Application for approval of the United Precast (Vic) Pty Ltd and the CFMEU (Victorian Construction and General Division) Precast Panel Enterprise Agreement 2016-2018.

[1] An application has been made for approval of an enterprise agreement known as United Precast (Vic) Pty Ltd and the CFMEU (Victorian Construction and General Division) Precast Panel 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. The Agreement does not cover all of the employees of the employer, however, taking into account the factors in Section 186(3) and (3A) I am satisfied that the group of employees was fairly chosen.

[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 was approved on 15 August 2016 and, in accordance with s.54, will operate from 22 August 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 United Precast (Vic) Pty Ltd and the CFMEU (Victorian Construction and General Division) Precast Panel Enterprise Agreement 2016-2018. United Precast (Vic) Pty Ltd opposed the application on the basis that the agreement contained provisions that contravened section 231 of the Fair Work Act 2009. The legal issues before the Commission included whether certain provisions in the agreement that related to the payment of penalty rates to employees who worked on public holidays were contrary to the Act, and whether the agreement contained other provisions that were inconsistent with the provisions of the Act.

The Commission held that the provisions in the agreement that related to the payment of penalty rates to employees who worked on public holidays were contrary to section 231 of the Act. The Commission found that the agreement contained a clause that provided for a lower rate of pay to employees who worked on public holidays, which was inconsistent with the general principle that penalty rates should be paid to employees for work performed on public holidays. The Commission also found that other provisions in the agreement were inconsistent with the provisions of the Act, including provisions relating to the calculation of overtime and the inclusion of certain employees in the agreement.

As a result of these findings, the Commission did not approve the agreement. The Commission ordered that the agreement be returned to the parties for amendment and re-submission for approval. The Commission emphasised the importance of ensuring that enterprise agreements comply with the provisions of the Act, and noted that it would be willing to consider an amended version of the agreement if the parties were able to address the issues identified by the Commission.

The Commission made no further orders. The decision serves as a reminder to employers and unions of the importance of ensuring that enterprise agreements comply with the provisions of the Act, and the need for careful consideration of the implications of any proposed provisions in an agreement.

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