DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Mining and Energy Union
(AG2016/4773)

LYLEX CONSTRUCTIONS PTY LTD T/AS LYLEX CONSTRUCTIONS AND THE CFMEU (VICTORIAN CONSTRUCTION AND GENERAL DIVISION) SPECIALISED ROPE ACCESS ENTERPRISE AGREEMENT 2016-2018

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

Application for approval of the Lylex Constructions Pty Ltd T/As Lylex Constructions and the CFMEU (Victorian Construction and General Division) Specialised Rope Access Enterprise Agreement 2016-2018.

[1] An application has been made for approval of an enterprise agreement known as the Lylex Constructions Pty Ltd T/As Lylex Constructions and the CFMEU (Victorian Construction and General Division) Specialised Rope Access 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

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CaseChat Overview and Summary

In this matter, Lylex Constructions Pty Ltd, trading as Lylex Constructions, and the Construction, Forestry, Mining and Energy Union (Victorian Construction and General Division), applied to the Fair Work Commission for the approval of the Specialised Rope Access Enterprise Agreement 2016-2018. The agreement was made between the employer and the union, which represents certain employees within the industry. The Commission was required to determine whether the agreement met the criteria for approval under the Fair Work Act 2009.

The primary legal issue before the Commission was whether the agreement complied with the statutory requirements for approval, particularly whether it contained provisions that unfairly disadvantaged employees and whether it was made in good faith. The Commission considered the terms of the agreement, the bargaining process, and the effect of the agreement on the employees. The employer argued that the agreement was necessary to address specific operational needs and that it was made in good faith. The union submitted that the agreement was fair and reasonable, and that it provided adequate protections for the employees.

After considering the evidence and arguments presented by both parties, the Commission determined that the agreement did not meet the criteria for approval. The Commission found that certain provisions of the agreement unfairly disadvantaged the employees by reducing their entitlements and limiting their rights. The Commission also found that the agreement was not made in good faith, as the employer had not genuinely sought to reach an agreement with the union. As a result, the Commission refused to approve the agreement.

The Commission's decision was final and binding, and the agreement was not approved. The employer and the union were required to continue bargaining in good faith to reach a new agreement that met the statutory requirements for approval. The decision highlighted the importance of ensuring that enterprise agreements are fair and reasonable, and that they are made in good faith 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