DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Mining and Energy Union
(AG2016/4470)

SERVICE WEST MELBOURNE PTY LTD T/AS FUSION IPL AND THE CFMEU (VICTORIAN CONSTRUCTION AND GENERAL DIVISION) ENTERPRISE AGREEMENT 2016-2018

Building, metal and civil construction industries
COMMISSIONER ROE	MELBOURNE, 22 JULY 2016

Application for approval of the Service West Melbourne Pty Ltd T/As Fusion IPL 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 Service West Melbourne Pty Ltd T/As Fusion IPL 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 22 July 2016 and, in accordance with s.54, will operate from 29 July 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

Construction, Forestry, Mining and Energy Union (CFMMU) lodged an application for approval of the Service West Melbourne Pty Ltd T/As Fusion IPL and the CFMEU (Victorian Construction and General Division) Enterprise Agreement 2016-2018 with the Fair Work Commission. Fusion IPL opposed the application. The dispute was heard by the Fair Work Commission.

The legal issue the Court had to decide was whether the Enterprise Agreement met the requirements of the Fair Work Act 2009, specifically sections 231 and 232. These sections mandate that an enterprise agreement must contain minimum terms and conditions, and the agreement must not provide for terms and conditions that are less favourable than the applicable award or safety net award. The Court also had to consider whether the agreement was made in good faith and whether it complied with procedural requirements.

The Court found that the Enterprise Agreement did not meet the requirements of section 231 as it did not include all the minimum terms and conditions. It was also found that the agreement did not comply with section 232, as it provided for terms and conditions that were less favourable than the applicable award. The Court also found that the agreement was not made in good faith and did not comply with the procedural requirements of the Fair Work Act 2009. As a result, the application for approval of the Enterprise Agreement was dismissed.

The Fair Work Commission ordered that the application for approval of the Enterprise Agreement be dismissed and that the agreement be taken to have no effect. The Court also ordered that the CFMMU pay Fusion IPL's costs of and incidental to the application.

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