DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Mining and Energy Union
(AG2016/3734)

BRENCHLEY FAMILY TRUST (THE TRUSTEE FOR) T/AS LIVING LANDSCAPES PTY LTD AND THE CFMEU (VICTORIAN CONSTRUCTION AND GENERAL DIVISION) ENTERPRISE AGREEMENT 2016-2018

Building, metal and civil construction industries
COMMISSIONER ROE	MELBOURNE, 5 JULY 2016

Application for approval of the Brenchley Family Trust (The Trustee for) T/As Living Landscapes 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 Brenchley Family Trust (The Trustee for) T/As Living Landscapes 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 5 July 2016 and, in accordance with s.54, will operate from 12 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 Brenchley Family Trust, trading as Living Landscapes Pty Ltd, and the Construction, Forestry, Mining and Energy Union (Victorian Construction and General Division) sought approval of their Enterprise Agreement 2016-2018. The application was made in the Fair Work Commission (FWC), which was responsible for assessing the fairness of the agreement under the Fair Work Act 2009. The dispute centred on whether the agreement met the criteria for being deemed "registered" and therefore enforceable. The key issues before the FWC involved whether the agreement was made in good faith, whether it contained the necessary minimum terms and conditions, and whether it was free from any improper influence or coercion. The FWC needed to ensure that the agreement was fair and balanced, taking into account the interests of both employers and employees.

In examining these issues, the FWC reviewed the process by which the agreement was negotiated, the content of the agreement itself, and the context in which it was made. The FWC assessed whether the parties had genuinely negotiated the terms of the agreement, whether the agreement provided for minimum terms and conditions that were not less favourable than the relevant award or safety net, and whether the agreement had been properly executed. The FWC also considered whether the agreement contained any provisions that were contrary to public policy or which might otherwise be unenforceable. After careful consideration of the evidence and submissions, the FWC found that the agreement met all the necessary criteria. The FWC determined that the agreement had been negotiated in good faith, contained the required minimum terms and conditions, and did not contain any improper provisions.

Consequently, the FWC approved the Enterprise Agreement 2016-2018, making it a legally binding document between the Brenchley Family Trust and the Construction, Forestry, Mining and Energy Union (Victorian Construction and General Division). The approval ensured that the terms of the agreement would be enforceable, providing a framework for the employment conditions of the union members within the specified period. The decision underscored the importance of fair and balanced negotiations in the creation of enterprise agreements, ensuring that both parties' interests are adequately represented. This outcome provided clarity and certainty for both employers and employees, facilitating the smooth operation of their industrial relations.

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