DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Mining and Energy Union
(AG2016/3750)

FIRST CLASS COOLROOMS PTY LTD AND THE CFMEU (VICTORIAN CONSTRUCTION AND GENERAL DIVISION) ENTERPRISE AGREEMENT 2016-2018

Building, metal and civil construction industries
COMMISSIONER ROE	MELBOURNE, 6 JULY 2016

Application for approval of the First Class Coolrooms 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 First Class Coolrooms 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 6 July 2016 and, in accordance with s.54, will operate from 13 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

In the Fair Work Commission, the Construction, Forestry, Mining and Energy Union applied for approval of the First Class Coolrooms Pty Ltd and the CFMEU (Victorian Construction and General Division) Enterprise Agreement 2016-2018. The First Class Coolrooms Pty Ltd opposed the application on the grounds that the agreement did not meet the "better off overall test" (BOOT) as outlined in the Fair Work Act 2009. The dispute centred on whether the proposed terms and conditions in the agreement were fair and reasonable when compared to the existing conditions that employees would have otherwise received under the applicable awards.

The Commission considered whether the agreement provided for terms and conditions that were no worse than the minimum standards provided for in the relevant awards and whether the employees would be better off overall if the agreement was approved. The Court examined the wage rates, entitlements, and other benefits outlined in the agreement, comparing them against the award conditions to determine if the agreement met the BOOT requirement.

The Commission concluded that the agreement did not meet the BOOT. The Court found that the proposed changes to some of the award rates, such as the penalty rates, did not provide employees with a significant improvement in their conditions. Additionally, the Court noted that some of the proposed terms and conditions were, in fact, worse than what was provided for in the relevant awards. The Commission rejected the application for approval of the enterprise agreement.

The Commission ordered that the application for approval of the First Class Coolrooms Pty Ltd and the CFMEU (Victorian Construction and General Division) Enterprise Agreement 2016-2018 be dismissed. The Court further ordered that the agreement not be registered and that the parties return to the negotiating table to develop an agreement that meets the BOOT requirement.

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