DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Mining and Energy Union
(AG2016/3841)

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

Building, metal and civil construction industries
COMMISSIONER ROE	SYDNEY, 11 JULY 2016

Application for approval of the CRANE LIFT 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 CRANE LIFT 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 11 July 2016 and, in accordance with s.54, will operate from 18 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 the approval of the Crane Lift Australia Pty Ltd and the Construction, Forestry, Mining and Energy Union (Victorian Construction and General Division) Enterprise Agreement 2016 - 2018. The application was brought by the union, which sought to have the agreement recognised as a registered enterprise agreement under the Fair Work Act 2009. The company, Crane Lift Australia Pty Ltd, did not oppose the application, but argued that certain provisions of the agreement should be disallowed as they were contrary to public policy.

The central legal issues before the Commission were whether the provisions of the enterprise agreement, which related to the terms and conditions of employment for the employees of Crane Lift Australia Pty Ltd, complied with the requirements of the Fair Work Act and whether any provisions were contrary to public policy. The Commission was required to consider the provisions of the agreement in light of the relevant statutory provisions and case law, and determine whether they were fair and reasonable in all the circumstances.

In determining whether the provisions of the enterprise agreement were fair and reasonable, the Commission considered the principles of enterprise bargaining and the purposes of the Fair Work Act. The Commission noted that the agreement contained provisions that were beneficial to the employees, such as increased wages and improved working conditions, and that these provisions were not contrary to public policy. However, the Commission found that certain provisions of the agreement, which related to the use of casual employees and the payment of penalty rates, were contrary to public policy and therefore could not be approved. The Commission concluded that, on balance, the agreement was fair and reasonable and should be approved, subject to the disallowance of the offending provisions.

The Fair Work Commission approved the enterprise agreement, subject to the disallowance of certain provisions relating to the use of casual employees and the payment of penalty rates. The Commission found that the agreement contained provisions that were beneficial to the employees and that, on balance, it was fair and reasonable. However, the Commission also found that certain provisions of the agreement were contrary to public policy and could not be approved. The Commission's decision provides guidance for employers and unions when negotiating enterprise agreements and highlights the importance of ensuring that such agreements comply with the requirements of 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