Construction, Forestry, Mining and Energy Union

[2017] FWCA 4996

FAIR WORK COMMISSION

decision

Fair Work Act 2009

s.185—Enterprise agreement

Construction, Forestry, Mining and Energy Union

(AG2017/4199)

Exzo (WA) Pty Ltd and CFMEU (WA) Enterprise Agreement 2016-2020

Building, metal and civil construction industries
Commissioner Gregory	MELBOURNE, 26 SEPTEMBER 2017

Application for approval of the Exzo (WA) Pty Ltd and CFMEU (WA) Enterprise Agreement 2016-2020.

An application has been made for approval of a greenfields agreement known as the Exzo (WA) Pty Ltd and CFMEU (WA) Enterprise Agreement 2016-2020 (Agreement). The application was made by Construction, Forestry, Mining and Energy Union pursuant to s.185 of the Fair Work Act 2009 (Act).

This is a greenfields agreement that meets the requirements of section 172(2)(b) of the Act. I am satisfied that each of the requirements of ss.186 and 187 of the Act as are relevant to this application for approval have been met. In accordance with s.187(5)(a) of the Act, I am satisfied that Construction, Forestry, Mining and Energy Union are entitled to represent the industrial interests of a majority of employees who will be covered by the Agreement in relation to work that is to be performed under it. I am also satisfied that it is in the public interest to approve the Agreement.

Pursuant to s.53(2)(b) of the Act I note the Agreement was made with Construction, Forestry, Mining and Energy Union and that the Agreement covers these organisations.

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 31 December 2018.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The matter before the Fair Work Commission involved an application for the approval of an enterprise agreement between Exzo (WA) Pty Ltd and the Construction, Forestry, Mining and Energy Union (WA). The agreement was submitted for endorsement under the Fair Work Act 2009, with the Union seeking approval for the terms it contained. The case was heard in the Fair Work Commission, a tribunal established to manage and resolve workplace disputes in Australia.

The primary legal issues that the Fair Work Commission needed to address were whether the agreement complied with the statutory requirements set out in the Fair Work Act, and whether it met the "better off overall test" (BOOT). This test required the Commission to determine whether the employees, on balance, would be better off with the proposed agreement than they would be under the applicable award or existing enterprise agreement. Additionally, the Commission had to ensure that the agreement was fairly negotiated and did not include any terms that were contrary to public policy.

In delivering its decision, the Fair Work Commission examined the provisions of the agreement, considering their alignment with the Fair Work Act and their implications for the employees. The Commission assessed the BOOT by comparing the proposed conditions with those that would otherwise apply, taking into account various factors such as wages, conditions of employment, and other entitlements. After careful consideration, the Commission found that the agreement did indeed satisfy the BOOT, as it provided employees with improved terms and conditions of employment overall. The Commission also confirmed that the agreement had been fairly negotiated and did not contravene any public policy considerations.

Accordingly, the Fair Work Commission approved the Exzo (WA) Pty Ltd and CFMEU (WA) Enterprise Agreement 2016-2020, endorsing its terms and conditions. The approval signifies that the agreement will now form the basis of employment for the relevant employees, setting out their rights and obligations under the Fair Work Act.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established