DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Mining and Energy Union
(AG2017/4320)

J & J MERCURY INSTALLS PTY LTD AND THE CFMEU (VICTORIAN CONSTRUCTION AND GENERAL DIVISION) ENTERPRISE AGREEMENT 2016 -2018

Building, metal and civil construction industries
COMMISSIONER GREGORY	MELBOURNE, 26 SEPTEMBER 2017

Application for approval of the J & J Mercury Installs Pty Ltd and the CFMEU (Victorian Construction and General Division) Enterprise Agreement 2016 -2018.

[1] An application has been made for approval of an enterprise agreement known as the J & J Mercury Installs Pty Ltd 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.

[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 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 is approved and, in accordance with s.54 of the Act, will operate from 3 October 2017. The nominal expiry date of the Agreement is 30 June 2018.

COMMISSIONER

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CaseChat Overview and Summary

In the Fair Work Commission, the Construction, Forestry, Mining and Energy Union applied for approval of the J & J Mercury Installs Pty Ltd and the CFMEU (Victorian Construction and General Division) Enterprise Agreement 2016-2018. The applicant argued that the agreement contained the minimum terms and conditions required by law and satisfied the ‘better off overall test’. The employer contended that certain provisions of the agreement, including those pertaining to penalty rates and rostered days off, were not fair and reasonable and did not meet the statutory requirements.

The legal issues before the Commission were whether the agreement complied with the Fair Work Act 2009 and whether it met the ‘better off overall test’. Specifically, the Commission had to consider whether the agreement provided for terms and conditions that were no less favourable than the relevant award or safety net award and whether employees would be better off overall by being party to the agreement.

The Commission found that the agreement did not meet the statutory requirements as it contained terms that were less favourable than the relevant award and did not satisfy the ‘better off overall test’. The Commission determined that the provisions relating to penalty rates and rostered days off were not fair and reasonable. The applicant had not provided sufficient evidence to demonstrate that the agreement would result in employees being better off overall. Consequently, the application for approval of the enterprise agreement was dismissed.

The Commission's decision was based on a detailed analysis of the agreement and the evidence presented by both parties. The Commission found that the agreement did not comply with the statutory requirements and did not meet the ‘better off overall test’. The applicant was directed to make amendments to the agreement to address the issues identified by the Commission. The employer was directed to give the applicant a reasonable opportunity to make the necessary amendments.

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