DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Mining and Energy Union
(AG2016/4507)

LUKA TIPPERS & EXCAVATION PTY LTD AND THE CFMEU (VICTORIAN CONSTRUCTION AND GENERAL DIVISION) ENTERPRISE AGREEMENT 2016-2018

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

Application for approval of the Luka Tippers & Excavation 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 Luka Tippers & Excavation 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 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 matter before the court involved an application by the Construction, Forestry, Mining and Energy Union (CFMEU) for approval of an enterprise agreement between Luka Tippers & Excavation Pty Ltd and the CFMEU (Victorian Construction and General Division) for the period 2016 to 2018. The primary dispute centred on whether the agreement complied with the requirements of the Fair Work Act 2009 and if it was made in good faith and without coercion. The case was heard by the Fair Work Commission.

The central legal issues before the court were whether the enterprise agreement was made in accordance with the relevant statutory provisions, particularly those concerning good faith bargaining and the absence of coercion. The court had to examine if the agreement met the criteria for approval under the Fair Work Act and if the negotiation process adhered to the principles of genuine bargaining. Additionally, the court considered whether the agreement contained terms that were consistent with the statutory minimum standards and protected the rights of employees.

The Fair Work Commission found that the enterprise agreement was made in good faith and without coercion. It held that the negotiation process was robust and transparent, with both parties engaging in genuine discussions. The court noted that the agreement contained terms that were not less favourable than the applicable awards and provided protections that aligned with the statutory minimum standards. Consequently, the court approved the enterprise agreement, recognising its compliance with the legislative requirements.

The final orders of the court were to approve the Luka Tippers & Excavation Pty Ltd and the CFMEU (Victorian Construction and General Division) Enterprise Agreement 2016-2018, effective from the date of the decision. The court's approval was based on the determination that the agreement was made in good faith, without coercion, and met all statutory requirements for enterprise agreements under the Fair Work 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