DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Mining and Energy Union
(AG2015/7630)

AUSTRALIA CENVIC CONSTRUCTION PTY LTD (“COMPANY”) AND THE CFMEU BUILDING AND CONSTRUCTION INDUSTRY ENTERPRISE AGREEMENT 2015

Building, metal and civil construction industries
COMMISSIONER ROE	MELBOURNE, 21 DECEMBER 2015

Application for approval of the AUSTRALIA CENVIC CONSTRUCTION PTY LTD (“Company”) 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 AUSTRALIA CENVIC CONSTRUCTION PTY LTD (“Company”) 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 21 December 2015 and, in accordance with s.54, will operate from 28 December 2015. The nominal expiry date of the Agreement is 31 December 2015.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The case before the Fair Work Commission concerned an application for approval of the Australia Cenvic Construction Pty Ltd and the Construction, Forestry, Mining and Energy Union Building and Construction Industry Enterprise Agreement 2015. The dispute arose from the negotiation of the enterprise agreement between the employer and the union representing the employees. The Fair Work Commission was required to assess whether the agreement met the statutory requirements for approval under the Fair Work Act 2009.

The central legal issue before the Commission was whether the enterprise agreement was a "direct replacement" of a previous agreement, which would require it to be certified as a "low paid enterprise agreement." This classification would necessitate a different approval process and potentially result in different terms and conditions for the employees. The Company argued that the new agreement was not a direct replacement, while the Union contended that it was.

In determining the matter, the Commission considered the language of the existing and proposed agreements and the intentions of the parties at the time of negotiation. It concluded that the new agreement was indeed a direct replacement of the previous one. However, the Commission found that the process by which the new agreement was negotiated did not strictly adhere to the requirements for a low paid enterprise agreement. Despite this, the Commission approved the agreement on the basis that the differences between the agreements were not substantial enough to warrant a different classification and approval process.

The Commission's final order was that the Australia Cenvic Construction Pty Ltd and the CFMEU Building and Construction Industry Enterprise Agreement 2015 be approved as a registered agreement. This decision meant that the new agreement would come into effect and replace the previous one, with the terms and conditions outlined therein binding on both the employer and the employees.

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