DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Mining and Energy Union
(AG2016/4503)

ABOVE & BEYOND PLASTERING PTY LTD AND THE CFMEU (VICTORIAN CONSTRUCTION AND GENERAL DIVISION) PLASTERING ENTERPRISE AGREEMENT 2016-2018

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

Application for approval of the Above & Beyond Plastering Pty Ltd and the CFMEU (Victorian Construction and General Division) Plastering Enterprise Agreement 2016-2018.

[1] An application has been made for approval of an enterprise agreement known as the Above & Beyond Plastering Pty Ltd and the CFMEU (Victorian Construction and General Division) Plastering 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 21 July 2016 and, in accordance with s.54, 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 Construction, Forestry, Mining and Energy Union and Above & Beyond Plastering Pty Ltd sought approval of their enterprise agreement from the Fair Work Commission. The enterprise agreement, which was to apply to employees of Above & Beyond Plastering Pty Ltd, covered a range of matters including wages and conditions. The dispute arose when the Australian Building and Construction Commission argued that the agreement should not be approved because it contained provisions that were contrary to public policy. The Commission argued that the agreement contained provisions that were designed to prevent employees from working overtime and that this was contrary to public policy because it prevented employers from offering employees the opportunity to work extra hours. The Fair Work Commission was required to decide whether the provisions in the agreement were contrary to public policy and, if so, whether the agreement should be approved notwithstanding the contravention of public policy. The Fair Work Commission held that the provisions in the agreement were not contrary to public policy. The Commission found that the provisions were not designed to prevent employees from working overtime but were instead designed to ensure that employees had a reasonable amount of time off between shifts. The Commission also found that the provisions did not prevent employers from offering employees the opportunity to work extra hours because employers could still offer employees the opportunity to work overtime if the employees agreed to do so. The Commission approved the enterprise agreement. The Commission held that the provisions in the agreement did not contravene public policy and that the agreement should be approved. The Fair Work Commission approved the enterprise agreement.

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