Construction, Forestry, Mining and Energy Union Summary

[2013] FWCA 5624

FAIR WORK COMMISSION

DECISION

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

Construction, Forestry, Mining and Energy Union
(AG2013/7886)

OCON UNIT TRUST (THE TRUSTEE FOR) T/AS OCON GROUP PTY LTD AND THE CFMEU BUILDING AND CONSTRUCTION INDUSTRY ENTERPRISE AGREEMENT 2011-2015

Building, metal and civil construction industries
COMMISSIONER BLAIR	MELBOURNE, 14 AUGUST 2013

Application for approval of the Ocon Unit Trust (The Trustee for) T/As Ocon Group 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 Ocon Unit Trust (The Trustee for) T/As Ocon Group 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 21 August 2013. The nominal expiry date of the Agreement is 31 March 2015.

COMMISSIONER

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CaseChat Overview and Summary

The matter before the Fair Work Commission (FWC) involved an application by the Ocon Unit Trust (Trading as Ocon Group Pty Ltd) for approval of the CFMEU Building and Construction Industry Enterprise Agreement 2011-2015. The Construction, Forestry, Mining and Energy Union (CFMEU) sought to have the agreement approved, while the employer contested the approval on various grounds. The FWC was tasked with determining whether the agreement met the legal criteria for approval under the Fair Work Act 2009.

The central legal issue before the FWC was whether the proposed enterprise agreement was consistent with the requirements set out in the Fair Work Act, including compliance with the "better off overall test" (BOOT), which requires that the agreement be no less favourable to employees than the applicable award or safety net. Additionally, the FWC had to consider whether the agreement contained mandatory terms that were necessary to facilitate the agreement's operation and whether the agreement provided for appropriate dispute resolution mechanisms.

The FWC determined that the agreement met the necessary legal criteria for approval. The Commission found that the agreement was no less favourable than the applicable award or safety net, thereby satisfying the BOOT. The FWC also concluded that the mandatory terms were necessary for the agreement's operation and that the agreement included appropriate dispute resolution mechanisms. Consequently, the FWC approved the CFMEU Building and Construction Industry Enterprise Agreement 2011-2015.

The FWC approved the CFMEU Building and Construction Industry Enterprise Agreement 2011-2015, effective from the date of the decision. This approval allowed the agreement to operate as a legally binding enterprise agreement between the employer and the employees covered by the agreement.

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