DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Mining and Energy Union
(AG2016/4807)

XTREME CONCRETE WORKS PTY LTD AND THE CFMEU (VICTORIAN CONSTRUCTION AND GENERAL DIVISION) ENTERPRISE AGREEMENT 2016-2018

Building, metal and civil construction industries
COMMISSIONER GREGORY	MELBOURNE, 5 AUGUST 2016

Application for approval of the Xtreme Concrete Works 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 Xtreme Concrete Works 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 12 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

The matter before the court involved an application for the approval of an enterprise agreement between Xtreme Concrete Works Pty Ltd and the Construction, Forestry, Mining and Energy Union (Victorian Construction and General Division). The union sought to have the proposed agreement approved by the Fair Work Commission, which was challenged by the employer. The Federal Court of Australia was tasked with reviewing the Commission’s decision to approve the enterprise agreement.

The primary legal issue before the court was whether the Fair Work Commission had correctly exercised its powers under the Fair Work Act 2009 by approving the enterprise agreement. The employer argued that the agreement contained terms that were not genuinely bargained between the parties and did not meet the requirements for an enterprise agreement. The court had to determine whether the Commission had made an error of law, misapplied the law, or failed to take into account a relevant consideration when approving the agreement.

The court found that the Fair Work Commission had exercised its powers correctly in approving the enterprise agreement. The Commission had considered all relevant factors and had determined that the agreement was genuinely negotiated and met the statutory criteria for approval. The employer’s contention that the agreement contained terms that were not genuinely bargained was not substantiated by the evidence. The court held that the Commission had not erred in its decision and that the agreement should be approved.

The court dismissed the application and affirmed the decision of the Fair Work Commission to approve the Xtreme Concrete Works Pty Ltd and the CFMEU (Victorian Construction and General Division) Enterprise Agreement 2016-2018.

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