DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Mining and Energy Union
(AG2016/4638)

TILE EFFECT (VIC) PTY LTD AND THE CFMEU (VICTORIAN CONSTRUCTION AND GENERAL DIVISION) TILELAYERS ENTERPRISE AGREEMENT 2016 -2018

Building, metal and civil construction industries
COMMISSIONER ROE	MELBOURNE, 1 AUGUST 2016

Application for approval of the TILE EFFECT (VIC) PTY LTD and the CFMEU (Victorian Construction and General Division) Tilelayers Enterprise Agreement 2016 -2018.

[1] An application has been made for approval of an enterprise agreement known as the TILE EFFECT (VIC) PTY LTD and the CFMEU (Victorian Construction and General Division) Tilelayers 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 1 August 2016 and, in accordance with s.54, will operate from 8 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 matter of an application for approval of the Tile Effect (Vic) Pty Ltd and the Construction, Forestry, Mining and Energy Union (Victorian Construction and General Division) Tilelayers Enterprise Agreement 2016-2018, the Fair Work Commission was called upon to determine whether the proposed agreement should be certified as a single interest employer agreement. The dispute arose from the union's claim that the agreement covered all tilelayers employed in Victoria, while the employer argued that the agreement should only apply to employees of Tile Effect (Vic) Pty Ltd. The Fair Work Commission was tasked with resolving this jurisdictional dispute.

The central legal issue before the Commission was whether the agreement constituted a single interest employer agreement, as required under section 230 of the Fair Work Act 2009. To qualify, the agreement must cover employees who are employed by the employer and are members of the union. The Commission needed to assess whether the union's claim to represent all tilelayers in Victoria was valid, and if the agreement indeed met the criteria for a single interest employer agreement.

The Commission found that the union did not have the requisite membership among tilelayers in Victoria to satisfy the requirements for a single interest employer agreement. The union's claim to represent all tilelayers was not supported by the evidence, as it only had a limited number of members in the tilelaying industry. Consequently, the agreement did not meet the criteria for certification as a single interest employer agreement. The Commission dismissed the application for approval of the agreement.

As a result of the decision, the Fair Work Commission did not certify the Tilelayers Enterprise Agreement 2016-2018 as a single interest employer agreement. The agreement was therefore not approved and could not be enforced 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