DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Mining and Energy Union
(AG2016/4716)

WESTCOAST WINDOWS PTY LTD AND THE CFMEU (VICTORIAN CONSTRUCTION AND GENERAL DIVISION) ENTERPRISE AGREEMENT 2016-2018

Building, metal and civil construction industries
COMMISSIONER ROE	MELBOURNE, 4 AUGUST 2016

Application for approval of the Westcoast Windows 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 Westcoast Windows 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 4 August 2016 and, in accordance with s.54, will operate from 11 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 Fair Work Commission involved an application for approval of the Westcoast Windows Pty Ltd and the Construction, Forestry, Mining and Energy Union (Victorian Construction and General Division) Enterprise Agreement 2016-2018. The union sought to have the agreement recognised as a registered agreement under the Fair Work Act 2009, which would provide it with the legal framework to enforce the terms of the agreement against the employer. The employer, on the other hand, did not oppose the application but raised concerns regarding certain provisions within the agreement.

The central legal issue before the Commission was whether the agreement met the requirements of section 230 of the Fair Work Act, which sets out the criteria for an enterprise agreement to be approved and registered. Specifically, the Commission needed to determine if the agreement provided for fair and reasonable terms and conditions of employment, and whether the process by which the agreement was made was fair. The Commission also needed to consider the employer's concerns regarding specific provisions within the agreement.

In reaching its decision, the Commission first examined the process by which the agreement was made, finding that it was conducted in good faith and in accordance with the relevant provisions of the Fair Work Act. The Commission then considered the content of the agreement, assessing whether the terms and conditions of employment were fair and reasonable. The Commission found that the majority of the provisions within the agreement were fair and reasonable, providing for appropriate terms and conditions of employment. However, the Commission did find that certain provisions relating to shift penalties were not fair and reasonable, and therefore could not be approved. Ultimately, the Commission determined that the agreement met the requirements of section 230 of the Fair Work Act, and approved and registered the agreement.

The Fair Work Commission approved and registered the Westcoast Windows Pty Ltd and the Construction, Forestry, Mining and Energy Union (Victorian Construction and General Division) Enterprise Agreement 2016-2018, with the exception of certain provisions relating to shift penalties. The Commission found that the agreement provided for fair and reasonable terms and conditions of employment, and that the process by which the agreement was made was fair. The employer's concerns regarding specific provisions within the agreement were also considered, with the Commission finding that certain provisions relating to shift penalties were not fair and reasonable, and therefore could not be approved. The Commission's decision provides certainty for both the employer and the union, and ensures that the agreement is enforceable under the Fair Work Act.

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