Construction, Forestry, Mining and Energy Union Summary

[2013] FWCA 107

FAIR WORK COMMISSION

DECISION

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

Construction, Forestry, Mining and Energy Union
(AG2012/14226)

EL-SHEIKH BUILDING SERVICES PTY LTD AND THE CFMEU BUILDING AND CONSTRUCTION INDUSTRY ENTERPRISE AGREEMENT 2011-2015

Building, metal and civil construction industries
SENIOR DEPUTY PRESIDENT WATSON	MELBOURNE, 9 JANUARY 2013

Application for approval of the El-Sheikh Building Services 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 El-Sheikh Building Services 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 16 January 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

In the Fair Work Commission, the Construction, Forestry, Mining and Energy Union applied for approval of the El-Sheikh Building Services Pty Ltd and the CFMEU Building and Construction Industry Enterprise Agreement 2011-2015. The agreement was submitted for registration under section 234 of the Fair Work Act 2009, and the application was contested by the employer, El-Sheikh Building Services Pty Ltd, on the grounds that the agreement did not meet the "better off overall test" as required by section 232 of the Fair Work Act 2009.

The central legal issue before the Commission was whether the terms and conditions outlined in the enterprise agreement provided employees with a "better off overall" outcome compared to the applicable awards. The Commission considered whether the agreement satisfied the "better off overall test" by evaluating the financial and non-financial benefits provided to employees under the agreement against the relevant awards. The Commission also considered the fairness and reasonableness of the agreement's terms in light of the broader industrial relations context.

After reviewing the submissions and evidence from both parties, the Fair Work Commission determined that the El-Sheikh Building Services Pty Ltd and the CFMEU Building and Construction Industry Enterprise Agreement 2011-2015 met the "better off overall test" as required by section 232 of the Fair Work Act 2009. The Commission found that the agreement provided employees with improved wages, conditions, and benefits compared to the applicable awards, and that the agreement was fair and reasonable in the context of the broader industrial relations environment. Consequently, the Commission approved the enterprise agreement for registration.

As a result of the Commission's decision, the El-Sheikh Building Services Pty Ltd and the CFMEU Building and Construction Industry Enterprise Agreement 2011-2015 was registered, and the terms and conditions outlined in the agreement became legally binding on both parties. The employer was required to comply with the agreement, and employees were entitled to the benefits and protections provided under 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