DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Mining and Energy Union
(AG2017/3813)

DEKK SOLUTIONS PTY LTD AND THE CFMEU (VICTORIAN CONSTRUCTION AND GENERAL DIVISION) ENTERPRISE AGREEMENT 2016 -2018

Building, metal and civil construction industries
COMMISSIONER GREGORY	MELBOURNE, 11 SEPTEMBER 2017

Application for approval of the DEKK SOLUTIONS 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 DEKK SOLUTIONS 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 18 September 2017. The nominal expiry date of the Agreement is 30 June 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 the DEKK SOLUTIONS PTY LTD and the CFMEU (Victorian Construction and General Division) Enterprise Agreement 2016-2018. The applicant, DEKK SOLUTIONS PTY LTD, sought the approval of the agreement which had been negotiated with the Construction, Forestry, Mining and Energy Union (CFMEU). The union, on behalf of its members, argued for certain provisions in the agreement, while the employer sought to limit these provisions to ensure operational efficiency and cost-effectiveness. The court was tasked with determining whether the agreement met the legal standards for approval under the Fair Work Act 2009.

The legal issues central to the case involved the scrutiny of specific provisions within the enterprise agreement to ensure they complied with the requirements of the Fair Work Act. Key issues included the fairness and reasonableness of the proposed conditions, particularly those related to wages, hours of work, and other employment terms. The court also needed to consider whether the agreement contained any provisions that were contrary to public policy or were otherwise unenforceable. Additionally, the court had to assess whether the agreement had been genuinely bargained and whether it provided for the proper negotiation process as mandated by the Act.

The Fair Work Commission found that while the majority of the provisions in the agreement were fair and reasonable, some clauses concerning overtime and penalty rates were not in line with the legislative standards. The court ruled that certain terms were not genuinely bargained, as they did not reflect the proper negotiation process. Consequently, the Commission made orders to amend these provisions to align with the legal requirements, ensuring that the agreement met the criteria for approval under the Fair Work Act. The court emphasised the importance of genuine bargaining and compliance with the statutory standards in enterprise agreements.

The final orders included the approval of the amended enterprise agreement, with specific changes to the overtime and penalty rate provisions to ensure they were compliant with the Fair Work Act. The court mandated that these changes be communicated to the parties and implemented within the specified timeframe. The decision underscored the necessity for enterprise agreements to be both fair and reasonably negotiated, reflecting the intent and spirit of the legislative framework governing industrial relations in Australia.

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