DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Mining and Energy Union
(AG2016/4865)

AC CONSTRUCTION GROUP PTY LTD 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 AC Construction Group 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 asthe AC Construction Group 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. 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, along with other unions, applied for the approval of the AC Construction Group Pty Ltd and the CFMEU (Victorian Construction and General Division) Enterprise Agreement 2016-2018. The applicant employers, represented by the Australian Construction Industry Group, opposed the application on the grounds that the agreement did not meet the requirements of the Fair Work Act 2009. The matter was heard by the Commission, comprising a delegate of the President, and was presided over by Deputy President McCabe.

The central legal issue before the Commission was whether the enterprise agreement contained provisions that were inconsistent with the Fair Work Act, specifically whether it included a clause that would allow for the dismissal of an employee without just cause or reason. The Commission had to determine if the agreement, as a whole, was in the best interests of the employees and if it met the criteria set out in the Act. The second issue was whether the agreement provided for a pay rise and conditions that were fair and better off overall for the employees.

In its decision, the Commission found that the agreement did indeed contain a clause that allowed for the dismissal of an employee without just cause or reason. However, the Commission determined that this clause was not inconsistent with the Fair Work Act as it was subject to certain conditions and restrictions. The Commission also found that the agreement provided for a pay rise and conditions that were fair and better off overall for the employees. The Commission concluded that the agreement was in the best interests of the employees and approved the application for registration of the enterprise agreement.

The Fair Work Commission approved the AC Construction Group Pty Ltd and the CFMEU (Victorian Construction and General Division) Enterprise Agreement 2016-2018, subject to certain modifications. The agreement was registered on the register of approved agreements and became a legally binding enterprise agreement between the parties.

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