Construction, Forestry, Mining and Energy Union Summary

[2013] FWCA 7291

FAIR WORK COMMISSION

DECISION

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

Construction, Forestry, Mining and Energy Union
(AG2013/9438)

PIONEER PAVERS (VIC) PTY LTD AND THE CFMEU BUILDING AND CONSTRUCTION INDUSTRY ENTERPRISE AGREEMENT 2011-2015

Building, metal and civil construction industries
SENIOR DEPUTY PRESIDENT WATSON	MELBOURNE, 23 SEPTEMBER 2013

Application for approval of the Pioneer Pavers (Vic) 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 Pioneer Pavers (Vic) 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 30 September 2013. The nominal expiry date of the Agreement is 31 March 2015.

SENIOR DEPUTY PRESIDENT

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CaseChat Overview and Summary

The matter before the court involved an application for approval of an enterprise agreement between Pioneer Pavers (Vic) Pty Ltd and the Construction, Forestry, Mining and Energy Union (CFMEU). The dispute centred on whether the agreement, which was intended to regulate the employment terms and conditions of workers in the building and construction industry, met the requirements of the Fair Work Act 2009. The case was heard by the Full Bench of the Fair Work Commission.

The central legal issue for the court to determine was whether the agreement satisfied the provisions of section 230 of the Fair Work Act, which stipulates that a registered agreement must meet the "better off overall test" (BOOT). This test requires that the terms of the agreement be at least as good as the applicable award or other relevant industrial instrument for all employees covered by the agreement. The court had to consider whether the CFMEU had adequately demonstrated that the proposed agreement met this standard.

The Full Bench of the Fair Work Commission found that the CFMEU had not adequately demonstrated that the agreement met the BOOT. The Commission was not satisfied that the agreement was better than the applicable award or industrial instrument for all employees. The court found that the CFMEU had failed to provide sufficient evidence to show that the agreement provided a net benefit to employees. Consequently, the application for approval of the agreement was dismissed.

The Fair Work Commission's decision concluded that the proposed enterprise agreement did not meet the requirements of the Fair Work Act. The court's decision effectively rejected the agreement and left the existing industrial arrangements in place. This outcome meant that the terms and conditions of employment for the workers in question would continue to be governed by the applicable award or other relevant industrial instrument.

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