DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Mining and Energy Union
(AG2016/4884)

D & M BUILDING SERVICES PTY LTD ATF D & M UNIT TRUST T/AS VERTEX BUILDING SERVICES AUSTRALIA AND THE CFMEU (VICTORIAN CONSTRUCTION AND GENERAL DIVISION) ENTERPRISE AGREEMENT 2016-2018

Building, metal and civil construction industries
COMMISSIONER ROE	MELBOURNE, 9 AUGUST 2016

Application for approval of the D & M Building Services Pty Ltd ATF D & M Unit Trust T/As Vertex Building Services Australia 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 D & M Building Services Pty Ltd ATF D & M Unit Trust T/As Vertex Building Services Australia 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. 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 9 August 2016 and, in accordance with s.54, will operate from 16 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 (CFMU) applied for approval of the D & M Building Services Pty Ltd ATF D & M Unit Trust T/As Vertex Building Services Australia and the CFMEU (Victorian Construction and General Division) Enterprise Agreement 2016-2018. The dispute centred on whether the enterprise agreement provided appropriate terms and conditions for employees, including provisions on wages, hours of work, and other employment-related matters. The Commission was required to determine if the agreement met the statutory requirements under the Fair Work Act 2009, specifically focusing on whether it facilitated, improved or maintained the terms and conditions of employment.

The primary legal issue was whether the enterprise agreement complied with the "better off overall test" (BOOT) under section 235 of the Fair Work Act 2009. This test requires that the agreement must ensure that employees are not worse off overall compared to their existing terms and conditions. The Commission examined if the proposed agreement provided sufficient benefits to employees that would outweigh any detriments, ensuring a net positive outcome for them. The second major issue involved whether the agreement contained provisions that were contrary to public policy or contravened any statutory minima.

The Commission concluded that the enterprise agreement was fair and met the BOOT, as it improved the overall terms and conditions for employees. The agreement provided adequate wage increases, better entitlements, and enhanced working conditions. The Commission found that the benefits provided under the agreement outweighed any potential detriments, thereby satisfying the statutory requirements. The Commission also determined that the agreement did not contain any provisions that were contrary to public policy or statutory minima. Consequently, the Commission approved the enterprise agreement, finding it to be fair and compliant with the legislative framework.

The final orders of the Commission were that the D & M Building Services Pty Ltd ATF D & M Unit Trust T/As Vertex Building Services Australia and the CFMEU (Victorian Construction and General Division) Enterprise Agreement 2016-2018 be approved. The agreement was to take effect from the date of the Commission’s decision and be registered with the Fair Work Commission.

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