DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Mining and Energy Union
(AG2016/4509)

MCKINNON’S FAMILY TRUST (THE TRUSTEE FOR) T/AS MCKINNONS PAINTING 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 McKinnon’s Family Trust (The Trustee For) T/As McKinnons Painting 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 McKinnon’s Family Trust (The Trustee For) T/As McKinnons Painting 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

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CaseChat Overview and Summary

The applicants in this case were the McKinnons Family Trust, trading as McKinnons Painting Pty Ltd, and the Construction, Forestry, Mining and Energy Union (Victorian Construction and General Division). They sought approval for their enterprise agreement from 2016 to 2018. The application was made to the Fair Work Commission, Australia’s independent workplace relations tribunal.

The central legal issue before the court was whether the proposed enterprise agreement met the criteria set out in the Fair Work Act 2009 for approval. Specifically, the court needed to determine if the agreement provided for fair and reasonable terms and conditions, and whether it was made in good faith and without coercion. The court also needed to consider if the agreement complied with the provisions of the Fair Work (Registered Organisations) Act 2009.

In delivering its decision, the Fair Work Commission examined the terms of the proposed agreement, the negotiation process, and the context in which the agreement was made. The Commission found that the agreement contained provisions that were fair and reasonable, and that it had been negotiated in good faith without any evidence of coercion. The Commission noted the efforts made by both parties to reach a mutually beneficial agreement, including the use of conciliation and mediation services. Given these findings, the Commission approved the enterprise agreement, recognising its compliance with the legislative requirements.

The Fair Work Commission’s decision was that the McKinnons Family Trust and the CFMEU (Victorian Construction and General Division) Enterprise Agreement 2016-2018 was approved and could proceed as a legally binding enterprise agreement. The approval was based on the Commission’s determination that the agreement met all necessary criteria under the Fair Work Act 2009 and the Fair Work (Registered Organisations) Act 2009.

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