DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Mining and Energy Union
(AG2016/4615)

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

Building, metal and civil construction industries
COMMISSIONER ROE	MELBOURNE, 27 JULY 2016

Application for approval of the ACW Projects 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 the ACW Projects 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 27 July 2016 and, in accordance with s.54, will operate from 3 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 ACW Projects Pty Ltd and the Construction, Forestry, Mining and Energy Union (Victorian Construction and General Division) Enterprise Agreement 2016-2018, the Fair Work Commission was tasked with determining whether the agreement should be approved. The dispute arose between the ACW Projects Pty Ltd and the union, where the union sought to have the enterprise agreement approved by the Commission. The agreement contained terms and conditions of employment for employees of ACW Projects Pty Ltd.

The legal issues before the Commission included whether the agreement complied with the requirements of the Fair Work Act 2009, particularly in relation to the 'better off overall test' (BOOT) and the 'no disadvantage test' (NDT). The Commission also had to consider whether the agreement was genuinely negotiated and if it met the criteria for being a protected action ballot under the Act. Furthermore, the Commission assessed if the agreement provided for minimum terms and conditions, and if it was in the interests of the employees.

The Fair Work Commission found that the agreement did meet the BOOT and NDT, and that it was genuinely negotiated between the parties. The Commission also determined that the agreement provided for minimum terms and conditions, and was in the interests of the employees. The Commission approved the enterprise agreement, noting that it was a fair and reasonable agreement that provided for the fair and reasonable terms and conditions of employment for the employees of ACW Projects Pty Ltd. The Commission was satisfied that the agreement met all the necessary criteria and requirements under the Fair Work Act 2009.

The Fair Work Commission approved the ACW Projects Pty Ltd and the Construction, Forestry, Mining and Energy Union (Victorian Construction and General Division) Enterprise Agreement 2016-2018. This decision was based on the Commission's determination that the agreement was genuinely negotiated, met the better off overall test and no disadvantage test, and provided for minimum terms and conditions. The Commission was satisfied that the agreement was in the interests of the employees and met all the requirements under 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