Construction, Forestry, Mining and Energy Union Summary

[2013] FWCA 9228

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement

Construction, Forestry, Mining and Energy Union
(AG2013/11520)

ELITE INTERIOR SOLUTIONS PTY LTD AND THE CFMEU BUILDING AND CONSTRUCTION INDUSTRY ENTERPRISE AGREEMENT 2011-2015

Building, metal and civil construction industries
SENIOR DEPUTY PRESIDENT WATSON	MELBOURNE, 22 NOVEMBER 2013

Application for approval of the Elite Interior Solutions Pty Ltd and the CFMEU Building and Construction Industry Enterprise Agreement 2011-2015.

[1] An application has been made for approval of an enterprise agreement known as the Elite Interior Solutions Pty Ltd and the CFMEU Building and Construction Industry Enterprise Agreement 2011-2015 (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 (CFMEU). 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.

[3] The CFMEU 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 is approved and, in accordance with s.54, will operate from 29 November 2013. The nominal expiry date of the Agreement is 31 March 2015.

SENIOR DEPUTY PRESIDENT

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CaseChat Overview and Summary

The case involved an application for approval of the Elite Interior Solutions Pty Ltd and the Construction, Forestry, Mining and Energy Union Building and Construction Industry Enterprise Agreement 2011-2015. The application was made to the Fair Work Commission (FWC), a tribunal with jurisdiction to approve, disallow or vary enterprise agreements under the Fair Work Act 2009. The applicant, Elite Interior Solutions, sought approval of the enterprise agreement while the respondent, the Construction, Forestry, Mining and Energy Union, did not oppose the application but raised concerns about certain provisions.

The central legal issue before the FWC was whether the proposed agreement complied with the requirements of the Fair Work Act, particularly whether it met the "better off overall test" (BOOT) which requires that employees be no worse off financially than they would be under their previous award or agreement. The Union raised concerns that certain provisions of the agreement, particularly those relating to penalty rates, could result in employees being worse off overall. The FWC needed to assess whether the agreement met the BOOT and other statutory requirements.

In its decision, the FWC considered the evidence and submissions from both parties. The FWC found that while some provisions of the agreement could result in employees being worse off in certain circumstances, the overall effect of the agreement was that employees would be better off. The FWC found that the agreement met the BOOT and other statutory requirements. The FWC also found that the agreement contained provisions that were beneficial to employees, such as increased leave entitlements and provisions for flexible working arrangements.

The FWC approved the agreement subject to certain modifications to address the Union's concerns. The modifications related to the calculation of penalty rates and the operation of certain provisions of the agreement. The FWC determined that the modified agreement met the BOOT and other statutory requirements and was therefore approved.

Construction, Forestry, Mining and Energy Union

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established