DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Mining and Energy Union
(AG2016/4542)

PROLAC PTY LTD T/AS PROLAC PAINTING MANAGEMENT PTY LTD 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 PROLAC PTY LTD T/As PROLAC Painting Management 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 PROLAC PTY LTD T/As PROLAC Painting Management 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 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

The matter before the Fair Work Commission involved an application by the Construction, Forestry, Mining and Energy Union (CFMEU) for the approval of the PROLAC Pty Ltd T/As PROLAC Painting Management Pty Ltd and the CFMEU (Victorian Construction and General Division) Enterprise Agreement 2016-2018. The dispute centred around whether the proposed enterprise agreement contained necessary provisions for procedural fairness and dispute resolution, which were mandated by the Fair Work Act 2009.

The legal issues before the commission were whether the agreement met the criteria for procedural fairness, as outlined in section 232 of the Fair Work Act, and whether it contained appropriate dispute resolution mechanisms as required by section 228 of the Act. The CFMEU argued that the agreement adequately provided for procedural fairness and dispute resolution, while PROLAC contended that the agreement did not sufficiently address these aspects.

The commission assessed the agreement against the statutory requirements, considering the specific provisions for procedural fairness and dispute resolution. It determined that the agreement did not explicitly include all necessary procedural fairness provisions, such as the right to be accompanied during disciplinary proceedings. Furthermore, while the agreement provided for a dispute resolution process, it was not deemed comprehensive enough to meet the statutory requirements. Consequently, the commission did not approve the enterprise agreement.

The final orders of the commission were that the application for approval of the enterprise agreement be dismissed, and the agreement was not approved. The commission highlighted the importance of including all mandated provisions for procedural fairness and dispute resolution in any future submissions.

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