Construction, Forestry, Mining and Energy Union

[2017] FWCA 6396

FAIR WORK COMMISSION

decision

Fair Work Act 2009

s.185—Enterprise agreement

Construction, Forestry, Mining and Energy Union

(AG2017/5662)

Fine Finish Caulking and the CFMEU (Victorian Construction and General Division) Enterprise Agreement 2016-2018

Building, metal and civil construction industries
Commissioner Gregory	MELBOURNE, 1 DECEMBER 2017

Application for approval of the Fine Finish Caulking and the CFMEU (Victorian Construction and General Division) Enterprise Agreement 2016-2018.

An application has been made for approval of an enterprise agreement known as the Fine Finish Caulking 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.

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 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.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 8 December 2017. 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 applicant, Fine Finish Caulking, sought approval for an enterprise agreement with the Construction, Forestry, Mining and Energy Union (Victorian Construction and General Division). The respondent union argued that the application should not be approved because it did not comply with the requirements of the Fair Work Act 2009. The Fair Work Commission heard the application and had to determine whether the agreement met the criteria for approval under the Act.

The main legal issue was whether the enterprise agreement complied with section 234 of the Act, which requires that the agreement must not provide for less favourable treatment of employees than their applicable award or registered agreement. The union argued that the agreement did not meet this requirement because it provided for less favourable treatment in relation to penalty rates and shift allowances. Fine Finish Caulking argued that the agreement was fair and reasonable and met the requirements of the Act.

The Commission found that the agreement did not comply with section 234 of the Act because it provided for less favourable treatment in relation to penalty rates and shift allowances. The Commission noted that the union had not argued that the agreement was unfair or unreasonable in any other respect. The Commission also found that the agreement did not meet the "better off overall test" under section 235 of the Act because it did not provide for any improvements to the employees' conditions of employment. The Commission concluded that the agreement did not meet the requirements for approval under the Act and dismissed the application.

The Commission did not make any orders because the application for approval of the enterprise agreement was dismissed. The parties were free to negotiate a new agreement that met the requirements of the Act or to continue to be bound by their applicable award or registered agreement.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established