DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Mining and Energy Union
(AG2016/3867)

ROYAL PAINTING SERVICES PTY LTD AND THE CFMEU (VICTORIAN CONSTRUCTION AND GENERAL DIVISION) ENTERPRISE AGREEMENT 2016 - 2018

Building, metal and civil construction industries
COMMISSIONER ROE	SYDNEY, 13 JULY 2016

Application for approval of the ROYAL PAINTING SERVICES 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 ROYAL PAINTING SERVICES 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 13 July 2016 and, in accordance with s.54, will operate from 20 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 case involved an application for the approval of the Royal Painting Services Pty Ltd and the Construction, Forestry, Mining and Energy Union (Victorian Construction and General Division) Enterprise Agreement 2016-2018. The application was brought before the Fair Work Commission, which was asked to determine if the agreement should be approved under the Fair Work Act 2009. The legal issues before the Commission were whether the agreement met the requirements of the Act, particularly in terms of its provisions and the process by which it was negotiated.

The Commission examined the process through which the agreement was negotiated, the content of the agreement, and whether the agreement met the "better-off, overall test" as stipulated in the Fair Work Act. This test requires that, on balance, the agreement must be better for the employees than what they would have achieved without it. The Commission also needed to assess whether the agreement contained the necessary "protected action provisions" and if it provided for appropriate dispute resolution mechanisms. Furthermore, the Commission considered whether the agreement was in accordance with the Australian National Minimum Employment Standards and if it contained provisions that were "unfair" or "unreasonable."

After reviewing the evidence and submissions from both parties, the Commission found that the agreement did not meet the better-off, overall test. The Commission was particularly concerned with certain provisions that they deemed were potentially unfair to employees. Additionally, the Commission was not satisfied with the negotiation process and concluded that the agreement did not adequately protect the interests of the employees. As a result, the Commission dismissed the application for approval of the enterprise agreement. This decision was based on the failure of the agreement to meet the statutory requirements under the Fair Work Act.

The final orders of the Commission were that the application for approval of the Royal Painting Services Pty Ltd and the CFMEU (Victorian Construction and General Division) Enterprise Agreement 2016-2018 be dismissed. The agreement was not approved and therefore did not have the force of law. This decision underscored the importance of ensuring that enterprise agreements not only provide for the fair treatment of employees but also adhere to the legal framework established by 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