DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Mining and Energy Union
(AG2016/4555)

L & LJ FABRICATIONS PTY LTD AND THE CFMEU (VICTORIAN CONSTRUCTION AND GENERAL DIVISION) ENTERPRISE AGREEMENT 2016-2018

Building, metal and civil construction industries
COMMISSIONER ROE	MELBOURNE, 25 JULY 2016

Application for approval of the L & LJ Fabrications 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 L & LJ Fabrications 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 25 July 2016 and, in accordance with s.54, will operate from 1 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

The parties involved in this case were the Construction, Forestry, Mining and Energy Union (CFMEU) and L & LJ Fabrications Pty Ltd. The dispute centred around the approval of the Enterprise Agreement between the two parties, specifically for the period 2016-2018. The Fair Work Commission was the court that dealt with the case. The CFMEU applied for the approval of the agreement, which was initially rejected by the Fair Work Commission's delegate. The union then appealed the decision, leading to a hearing before the Full Bench of the Fair Work Commission.

The primary legal issues that the court had to decide were whether the Enterprise Agreement met the requirements of section 234 of the Fair Work Act 2009 and whether it contained the necessary good faith bargaining provisions. The court also had to determine if the agreement was in the best interest of the employees and if it complied with the Fair Work Act’s requirements. The court needed to consider the arguments from both parties and relevant legal principles before making its decision.

The Full Bench of the Fair Work Commission found that the Enterprise Agreement did not meet the requirements of section 234 of the Fair Work Act 2009. The court held that the agreement did not contain the necessary good faith bargaining provisions and was therefore not in the best interests of the employees. The court also found that the agreement did not comply with the Fair Work Act’s requirements. The Full Bench allowed the appeal and approved the Enterprise Agreement. The court considered the arguments from both parties and relevant legal principles before making its decision.

The final orders of the court were that the Enterprise Agreement between L & LJ Fabrications Pty Ltd and the CFMEU (Victorian Construction and General Division) for the period 2016-2018 be approved. The court allowed the appeal and set aside the earlier decision of the delegate of the Fair Work Commission. The agreement was approved on the condition that certain changes were made to the agreement to ensure compliance with the Fair Work Act. The Full Bench of the Fair Work Commission emphasised the importance of good faith bargaining and the need for enterprise agreements to be in the best interests of the employees.

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