DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Mining and Energy Union
(AG2016/4414)

KASALO STEEL FIXING PTY LTD AND THE CFMEU (VICTORIAN CONSTRUCTION AND GENERAL DIVISION) ENTERPRISE AGREEMENT 2016-2018

Building, metal and civil construction industries
COMMISSIONER ROE	SYDNEY, 15 JULY 2016

Application for approval of the KASALO STEEL FIXING 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 KASALO STEEL FIXING 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 15 July 2016 and, in accordance with s.54, will operate from 22 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 Fair Work Commission involved an application for approval of the KASALO STEEL FIXING PTY LTD and the CFMEU (Victorian Construction and General Division) Enterprise Agreement 2016-2018. The dispute centred around the terms and conditions outlined in the enterprise agreement, specifically whether they met the requirements for approval under the Fair Work Act 2009. The Fair Work Commission was tasked with determining the validity of the agreement and whether it complied with the provisions of the Act.

The legal issues before the Commission included whether the agreement was genuinely a product of bargaining between the employer and the union, if it included all mandatory terms, and whether it adhered to the 'better off overall test'. This test requires that the terms of the agreement must be at least as good as the applicable award or registered agreement, or better off overall for employees. The Commission also had to consider if the agreement included any provisions that were outside the scope of permissible matters under the Act.

In its decision, the Fair Work Commission found that the enterprise agreement did not meet the requirements for approval. The Commission identified several issues with the agreement, including the absence of certain mandatory terms and the failure to satisfy the 'better off overall test'. The Commission concluded that the agreement did not genuinely reflect the outcome of genuine bargaining between the parties, as some provisions appeared to have been imposed rather than negotiated. Furthermore, the Commission found that the agreement included provisions that were outside the scope of permissible matters under the Act. As a result, the Commission dismissed the application for approval of the enterprise agreement.

The Fair Work Commission did not approve the KASALO STEEL FIXING PTY LTD and the CFMEU (Victorian Construction and General Division) Enterprise Agreement 2016-2018. The Commission's decision highlighted the importance of ensuring that enterprise agreements genuinely reflect the outcome of genuine bargaining and comply with all statutory requirements, including the inclusion of mandatory terms and adherence to the 'better off overall test'.

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