DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Mining and Energy Union
(AG2016/4435)

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

Building, metal and civil construction industries
COMMISSIONER ROE	MELBOURNE, 18 JULY 2016

Application for approval of the FYTOGREEN AUSTRALIA 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 FYTOGREEN AUSTRALIA 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 18 July 2016 and, in accordance with s.54, will operate from 25 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 applicant, the Construction, Forestry, Mining and Energy Union (CFMEU), sought approval for the FYTOGREEN AUSTRALIA PTY LTD and the CFMEU (Victorian Construction and General Division) Enterprise Agreement 2016-2018, which was to be registered under the Fair Work Act 2009. The application was made to the Fair Work Commission, which is responsible for approving enterprise agreements in Australia. The dispute arose as the respondent, FYTOGREEN AUSTRALIA PTY LTD, objected to the agreement on various grounds, including concerns about the agreement's compliance with the Fair Work Act.

The primary legal issues the Commission had to address were whether the enterprise agreement complied with the requirements of the Fair Work Act and whether it was in the best interests of the employees. The Commission had to assess if the agreement was genuinely a bargain between the parties, if it met the procedural requirements, and if it contained provisions that were not contrary to public policy or unfair. The Commission also considered whether the agreement provided adequate protections and benefits for the employees and if it was made in good faith.

In determining the application, the Commission examined the evidence presented by both parties, including witness testimonies and documentary evidence. The Commission found that the agreement was a genuine bargain between the parties, met the procedural requirements, and contained provisions that were not contrary to public policy or unfair. The Commission concluded that the agreement provided adequate protections and benefits for the employees and was made in good faith. Based on these findings, the Commission approved the application and registered the enterprise agreement.

The Fair Work Commission approved the FYTOGREEN AUSTRALIA PTY LTD and the CFMEU (Victorian Construction and General Division) Enterprise Agreement 2016-2018 and ordered that it be registered under the Fair Work Act 2009. The Commission found that the agreement met the requirements of the Act and was in the best interests of the employees. The decision provides guidance to employers and unions on the requirements for approving enterprise agreements and the factors the Commission considers when making its decision.

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