DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Mining and Energy Union
(AG2016/2132)

MELBOURNE STRUCTURAL ENGINEERING TRUST (ATF) T/AS MELBOURNE STRUCTURAL ENGINEERING PTY LTD AND THE CFMEU BUILDING AND CONSTRUCTION INDUSTRY ENTERPRISE AGREEMENT 2015

Building, metal and civil construction industries
COMMISSIONER ROE	MELBOURNE, 22 JANUARY 2016

Application for approval of the MELBOURNE STRUCTURAL ENGINEERING TRUST (ATF) T/As MELBOURNE STRUCTURAL ENGINEERING PTY LTD and the CFMEU Building and Construction Industry Enterprise Agreement 2015.

[1] An application has been made for approval of an enterprise agreement known as the MELBOURNE STRUCTURAL ENGINEERING TRUST (ATF) T/As MELBOURNE STRUCTURAL ENGINEERING PTY LTD and the CFMEU Building and Construction Industry Enterprise Agreement 2015 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by the 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 22 January 2016 and, in accordance with s.54, will operate from 29 January 2016. The nominal expiry date of the Agreement is 31 January 2016.

COMMISSIONER

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CaseChat Overview and Summary

The case involved an application by the Melbourne Structural Engineering Trust, trading as Melbourne Structural Engineering, for the approval of their enterprise agreement with the Construction, Forestry, Mining and Energy Union (CFMEU). The matter was heard in the Fair Work Commission (FWC). The core dispute centred on whether the proposed enterprise agreement met the legal standards for approval under the Fair Work Act 2009. Specifically, the FWC had to assess whether the agreement contained appropriate provisions for minimum wages and conditions, and if it adhered to the requirements for genuine bargaining and procedural fairness.

The legal issues before the FWC included verifying if the agreement was genuinely bargained, if it included the mandated minimum terms and conditions, and if it complied with the procedural fairness provisions. The FWC also needed to ensure that the agreement was not detrimental to the employees it covered. The CFMEU argued that the proposed agreement failed to adequately protect employees' wages and conditions, while the applicant contended that the agreement was the result of genuine bargaining and met all statutory requirements.

The FWC found that while the application was generally procedurally sound, certain provisions of the agreement did not meet the statutory requirements for minimum terms and conditions. The FWC detailed that some of the proposed wage rates and conditions were below the mandated minimums set out in the applicable awards. Additionally, the FWC concluded that there were procedural shortcomings in the bargaining process, particularly in relation to the communication of the agreement's terms to the employees. Consequently, the FWC did not grant approval to the enterprise agreement. The FWC did, however, provide detailed guidance and recommendations for amendments to address the identified deficiencies.

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