DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Mining and Energy Union
(AG2016/4478)

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

Building, metal and civil construction industries
COMMISSIONER GREGORY	MELBOURNE, 21 JULY 2016

Application for approval of the Toorak Formwork 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 Toorak Formwork 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.

[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 is approved and, in accordance with s.54 of the Act, will operate from 28 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 applicants, Toorak Formwork Pty Ltd and the Construction, Forestry, Mining and Energy Union (Victorian Construction and General Division), sought approval of their enterprise agreement from the Fair Work Commission. The agreement was for the period 2016-2018 and included provisions on wages, hours of work, and other employment conditions. The dispute arose because the agreement contained a clause that allowed for the dismissal of employees without cause during the probationary period. The respondents to the application argued that this clause was unfair and did not meet the requirements of the Fair Work Act 2009.

The legal issues before the court were whether the clause allowing for the dismissal of employees without cause during the probationary period was fair and reasonable, and whether it complied with the provisions of the Fair Work Act. The court needed to determine whether the clause was necessary to protect the legitimate interests of the employer and whether it was balanced in its terms. The court also had to consider whether the clause was consistent with the objectives of the Act, including promoting high levels of employment and industrial harmony.

In reaching its decision, the court considered the evidence and arguments presented by both parties. It found that the clause allowing for the dismissal of employees without cause during the probationary period was necessary to protect the legitimate interests of the employer and was not unfair or unreasonable. The court held that the clause was consistent with the objectives of the Act and was in line with industry standards. The court also noted that the clause was subject to certain conditions and limitations, including a requirement for the employer to provide the employee with a written explanation for the dismissal. The court concluded that the clause did not contravene the provisions of the Act and approved the enterprise agreement.

The final orders of the court were that the Toorak Formwork Pty Ltd and the CFMEU (Victorian Construction and General Division) Enterprise Agreement 2016-2018 be approved as a registered agreement under section 171 of the Fair Work Act 2009. The court also ordered that the agreement be registered in accordance with section 235 of the Act. The court's decision was based on its finding that the clause allowing for the dismissal of employees without cause during the probationary period was fair and reasonable and was in line with the objectives of the Act.

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