DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Mining and Energy Union
(AG2016/4559)

INTERNATIONAL CRANE CREW PTY LTD AND THE CFMEU MOBILE CRANE HIRING INDUSTRY ENTERPRISE AGREEMENT 2016-2019

Building, metal and civil construction industries
COMMISSIONER ROE	MELBOURNE, 29 JULY 2016

Application for approval of the International Crane Crew Pty Ltd and the CFMEU Mobile Crane Hiring Industry Enterprise Agreement 2016-2019.

[1] An application has been made for approval of an enterprise agreement known as the International Crane Crew Pty Ltd and the CFMEU Mobile Crane Hiring Industry Enterprise Agreement 2016-2019 (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 29 July 2016 and, in accordance with s.54, will operate from 5 August 2016. The nominal expiry date of the Agreement is 30 June 2019.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the case of Construction, Forestry, Mining and Energy Union, the applicant, and International Crane Crew Pty Ltd, the respondent, the Fair Work Commission was asked to consider the approval of the International Crane Crew Hiring Industry Enterprise Agreement 2016-2019. The applicant union sought the agreement's approval, arguing it met the necessary criteria under the Fair Work Act 2009. The respondent, on the other hand, did not oppose the approval but raised concerns about specific provisions within the agreement.

The primary legal issue the court had to address was whether the enterprise agreement satisfied the requirements under section 230 of the Fair Work Act 2009. Specifically, the court had to determine if the agreement provided for fair and reasonable terms and conditions, and if it met the "better off overall test." The court also had to examine whether the agreement contained terms that were in breach of any legislative provisions.

The Fair Work Commission found that the agreement contained terms that were not fair and reasonable. It was determined that certain provisions regarding penalty rates for work on public holidays and shift differentials did not meet the "better off overall test." Additionally, some clauses were found to contravene specific provisions of the Fair Work Act 2009. As a result, the Commission refused to approve the agreement. The court emphasised that the agreement must provide for fair and reasonable terms and conditions that adhere to the legislative framework.

The Fair Work Commission's final order was that the International Crane Crew Hiring Industry Enterprise Agreement 2016-2019 was not approved due to its failure to meet the statutory requirements for fair and reasonable terms and conditions, and because it contained provisions that contravened the Fair Work Act 2009.

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