DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Mining and Energy Union
(AG2016/3686)

GAVCON GROUP AUSTRALIA INVESTMENT TRUST T/AS GAVCON GROUP AUSTRALIA 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 Gavcon Group Australia Investment Trust T/As Gavcon Group 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 Gavcon Group Australia Investment Trust T/As Gavcon Group 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 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 Gavcon Group Australia Investment Trust, trading as Gavcon Group Australia, and the Construction, Forestry, Mining and Energy Union (Victorian Construction and General Division) sought approval for their Enterprise Agreement 2016-2018 before the Fair Work Commission. The dispute arose over the terms of the agreement, specifically regarding the union's request for a clause that would facilitate the use of union officials within the premises of Gavcon Group Australia. The Gavcon Group opposed this clause, asserting it would infringe on their business operations and property rights. The Fair Work Commission was tasked with determining whether the proposed clause was in compliance with the Fair Work Act 2009.

The central legal issue before the Fair Work Commission was whether the clause requesting the use of union officials within Gavcon Group Australia's premises was consistent with the provisions of the Fair Work Act. The Commission had to balance the rights of the union to organise and advocate for its members against the employer's rights to manage their business premises and operations. The Gavcon Group argued that allowing union officials onto their premises would compromise their business operations and property rights. The union, on the other hand, contended that the clause was necessary to effectively represent their members and ensure fair working conditions.

The Fair Work Commission assessed the proposed clause in light of the Fair Work Act and its guiding principles. It found that the clause was not overly burdensome and was necessary for the union to perform its functions effectively. The Commission emphasised the importance of protecting the rights of employees to be represented by their union and the role of the union in negotiating and maintaining fair and reasonable enterprise agreements. The Gavcon Group's concerns about operational disruption and property rights were considered, but the Commission concluded that these did not outweigh the union's right to organise and represent its members. Consequently, the Commission approved the Enterprise Agreement 2016-2018, including the clause permitting the use of union officials within Gavcon Group Australia's premises.

The Fair Work Commission ordered the approval of the Gavcon Group Australia Investment Trust T/As Gavcon Group Australia Pty Ltd and the CFMEU (Victorian Construction and General Division) Enterprise Agreement 2016-2018, inclusive of the clause allowing union officials access to the employer's premises. This decision underscored the importance of maintaining a balance between the rights of employers and employees, and the role of the Fair Work Commission in ensuring fair and reasonable enterprise agreements.

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