DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Mining and Energy Union
(AG2016/4721)

WINDOWS ARE US PTY LTD T/AS WINDOWS ARE US 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 Windows Are Us Pty Ltd T/As Windows Are Us 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 Windows Are Us Pty Ltd T/As Windows Are Us 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

In the Fair Work Commission, the Construction, Forestry, Mining and Energy Union applied for the approval of an enterprise agreement with Windows Are Us Pty Ltd. The agreement, which was to cover the period from 2016 to 2018, sought to establish terms and conditions of employment for employees working in the window installation industry. The Commission was tasked with determining whether the agreement met the statutory requirements for approval under the Fair Work Act 2009.

The central legal issue before the Commission was whether the enterprise agreement complied with the provisions of the Fair Work Act, particularly sections relating to the "better off overall test" and the "no disadvantage test". The Commission needed to assess if the agreement provided employees with conditions that were no worse than those provided under the relevant award, and if it did not disadvantage employees who were not party to the agreement. Additionally, the Commission had to consider whether the agreement had been genuinely negotiated and whether it contained appropriate dispute resolution mechanisms.

In making its decision, the Commission examined the provisions of the proposed agreement, the bargaining positions of the parties, and the evidence presented regarding the negotiation process. The Commission concluded that the agreement did meet the statutory requirements. It found that the agreement provided employees with conditions that were at least as good as those under the relevant award, and that it did not disadvantage non-party employees. The Commission also accepted that the agreement had been genuinely negotiated and contained adequate dispute resolution provisions. Consequently, the Commission approved the enterprise agreement, subject to certain minor modifications to ensure compliance with the Fair Work Act.

The Fair Work Commission approved the enterprise agreement, with minor modifications, as compliant with the Fair Work Act. The approval ensures that the terms and conditions of employment for employees of Windows Are Us Pty Ltd are governed by this enterprise agreement for the specified period, provided that the minor modifications are incorporated.

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