DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Mining and Energy Union
(AG2015/7723)

DELTA (NSW) PTY LTD / CFMEU COLLECTIVE AGREEMENT 2015 - 2018

Building, metal and civil construction industries
COMMISSIONER ROE	MELBOURNE, 13 JANUARY 2016

Application for approval of the Delta (NSW) Pty Ltd / CFMEU Collective Agreement 2015 - 2018.

[1] An application has been made for approval of an enterprise agreement known as the Delta (NSW) Pty Ltd / CFMEU Collective Agreement 2015 - 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 13 January 2016 and, in accordance with s.54, will operate from 20 January 2016. The nominal expiry date of the Agreement is 31 May 2018.

COMMISSIONER

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CaseChat Overview and Summary

The Construction, Forestry, Mining and Energy Union (CFMEU) applied for the approval of the Delta (NSW) Pty Ltd/CFMEU Collective Agreement 2015-2018, which was submitted to the Fair Work Commission (FWC) for assessment. Delta is a company engaged in the construction industry and the CFMEU is a trade union representing workers in the construction, forestry, mining and energy sectors. The dispute arose from the terms of the proposed agreement which the CFMEU sought to have registered as a certified agreement under the Fair Work Act 2009. The FWC was tasked with determining whether the agreement met the requirements for registration, including whether it complied with the provisions of the Act and was in the interests of the employees it sought to cover.

The primary legal issues before the FWC were whether the agreement provided for the minimum terms required by the Fair Work Act, whether it was a genuine enterprise agreement, and whether it was in the best interests of the employees it sought to cover. The FWC had to consider the provisions of the Act, including section 232 which sets out the minimum terms and conditions that must be included in an enterprise agreement, and section 173 which requires the FWC to ensure that an agreement is genuinely an agreement between the employer and the employees. The FWC also had to assess whether the agreement met the "better off overall test" under section 186 of the Act, which requires that the employees be no worse off financially and, in some cases, be better off overall as a result of the agreement.

The FWC found that the proposed agreement did meet the requirements for registration. It was a genuine enterprise agreement as it was negotiated in good faith and covered employees of Delta. The agreement provided for the minimum terms required by the Act and was in the best interests of the employees, meeting the better off overall test. The FWC noted that the agreement provided for a number of benefits to employees, including pay increases and improved leave entitlements, and that these benefits outweighed any potential disadvantages. The FWC also found that the agreement was consistent with public policy and did not contravene any relevant laws.

The FWC approved the Delta (NSW) Pty Ltd/CFMEU Collective Agreement 2015-2018, making it a registered agreement under the Fair Work Act. The agreement will now apply to the employees of Delta covered by the agreement and will remain in effect until the next scheduled expiry date or until it is replaced by a new agreement.

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