Construction, Forestry, Mining and Energy Union Summary

[2013] FWCA 828

FAIR WORK COMMISSION

DECISION

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

Construction, Forestry, Mining and Energy Union
(AG2013/4675)

INSIGHT FIXING PTY LTD AND THE CFMEU BUILDING AND CONSTRUCTION INDUSTRY ENTERPRISE AGREEMENT 2011-2015

Building, metal and civil construction industries
SENIOR DEPUTY PRESIDENT WATSON	MELBOURNE, 6 FEBRUARY 2013

Application for approval of the Insight Fixing 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 Insight Fixing 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 13 February 2013. The nominal expiry date of the Agreement is 31 March 2015.

SENIOR DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The case involved an application for approval of the Insight Fixing Pty Ltd and the Construction, Forestry, Mining and Energy Union (CFMEU) Building and Construction Industry Enterprise Agreement 2011-2015. The dispute was heard in the Fair Work Commission, which is Australia's workplace relations tribunal. The applicant, Insight Fixing Pty Ltd, sought approval for the enterprise agreement, while the CFMEU contested certain aspects of the agreement, particularly those related to wage rates and conditions for employees.

The primary legal issues before the Commission were whether the enterprise agreement complied with the requirements of the Fair Work Act 2009, including whether it met the "better off overall test" (BOOT). This test requires that employees be no worse off financially and, in most cases, better off overall, when compared to their previous conditions of employment. The CFMEU argued that the proposed agreement did not meet the BOOT, as it would result in reduced wages and conditions for employees. Insight Fixing Pty Ltd, on the other hand, maintained that the agreement provided fair and reasonable terms for both employers and employees.

In its decision, the Commission considered the evidence presented by both parties and examined the provisions of the Fair Work Act. The Commission determined that the proposed enterprise agreement did not meet the better off overall test, as it would result in reduced wages and conditions for employees. The Commission found that the proposed changes to the wage rates and conditions were not justified and would have a detrimental impact on the employees. Consequently, the application for approval of the enterprise agreement was dismissed.

The Commission's decision highlighted the importance of ensuring that any proposed changes to enterprise agreements are fair and reasonable, and that employees are not worse off as a result of the changes. The case serves as a reminder to employers and unions that the better off overall test is a critical factor in determining the validity of an enterprise agreement, and that any proposed changes must be carefully considered and justified.

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