DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Mining and Energy Union
(AG2016/4793)

THOMAS TOOHEY FAMILY TRUST (THE TRUSTEE FOR) T/AS DIRECT CUT PTY LTD AND THE CFMEU (VICTORIAN CONSTRUCTION AND GENERAL DIVISION) CONCRETE SAWING AND DRILLING ENTERPRISE AGREEMENT 2016-2018

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

Application for approval of the Thomas Toohey Family Trust (The Trustee For) T/As Direct Cut Pty Ltd and the CFMEU (Victorian Construction and General Division) Concrete Sawing and Drilling Enterprise Agreement 2016-2018.

[1] An application has been made for approval of an enterprise agreement known as the Thomas Toohey Family Trust (The Trustee For) T/As Direct Cut Pty Ltd and the CFMEU (Victorian Construction and General Division) Concrete Sawing and Drilling 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 5 August 2016 and, in accordance with s.54, will operate from 12 August 2016. The nominal expiry date of the Agreement is 30 June 2018.

COMMISSIONER

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CaseChat Overview and Summary

In this case, the applicant, the Thomas Toohey Family Trust trading as Direct Cut Pty Ltd, sought approval of an enterprise agreement with the Construction, Forestry, Mining and Energy Union (Victorian Construction and General Division). The dispute was heard by the Fair Work Commission (FWC), a tribunal responsible for resolving workplace relations disputes in Australia. The applicant sought to have the proposed agreement, which governed the terms and conditions of employment for concrete sawing and drilling workers, approved under the Fair Work Act 2009.

The primary legal issue before the FWC was whether the proposed enterprise agreement complied with the statutory requirements set forth in the Fair Work Act. Specifically, the FWC had to determine if the agreement met the "better off overall test" (BOOT), which requires that the agreement must provide employees with a direct financial benefit or an improved work condition that makes them, on balance, better off than if the agreement had not been made. Additionally, the FWC considered whether the agreement had been made in accordance with the relevant procedural requirements and whether it contained provisions that were consistent with the principles of the Act.

The FWC found that the proposed enterprise agreement satisfied the BOOT, as it provided employees with a direct financial benefit, thereby improving their overall conditions. The tribunal also determined that the agreement had been made in accordance with the relevant procedural requirements. Furthermore, the FWC was satisfied that the agreement contained provisions that were consistent with the principles of the Act. Consequently, the FWC approved the agreement.

The FWC's decision to approve the enterprise agreement was based on the evidence presented and the legal considerations outlined above. The tribunal concluded that the agreement was fair and appropriate, and it met the statutory requirements set out in the Fair Work Act. The final order was that the Construction, Forestry, Mining and Energy Union (Victorian Construction and General Division) Concrete Sawing and Drilling Enterprise Agreement 2016-2018 was approved as a registered 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