DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Mining and Energy Union
(AG2017/2965)

MAUGERI (NO 2) FAMILY TRUST (THE TRUSTEE FOR) T/AS KELVIN WAY PTY LTD AND THE CFMEU (VICTORIAN CONSTRUCTION AND GENERAL DIVISION) ENTERPRISE AGREEMENT 2016-2018

Building, metal and civil construction industries
COMMISSIONER GREGORY	MELBOURNE, 2 AUGUST 2017

Application for approval of the Maugeri (No 2) Family Trust (The Trustee for) T/As Kelvin Way 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 Maugeri (No 2) Family Trust (The Trustee for) T/As Kelvin Way 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 9 August 2017. The nominal expiry date of the Agreement is 30 June 2018.

COMMISSIONER

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CaseChat Overview and Summary

The Construction, Forestry, Mining and Energy Union (CFMEU) and T/As Kelvin Way Pty Ltd brought an application before the Fair Work Commission seeking approval of the Maugeri (No 2) Family Trust, t/as Kelvin Way Pty Ltd and the CFMEU (Victorian Construction and General Division) Enterprise Agreement 2016-2018. The CFMEU sought to have the agreement approved under the Fair Work Act 2009, asserting that it had been fairly negotiated and met the criteria for approval. Kelvin Way Pty Ltd opposed the application, contending that the agreement contained unfair provisions and was not genuinely negotiated. The central legal issues were whether the agreement was fairly negotiated and met the statutory criteria for approval, and whether any provisions within the agreement were unfair.

The Fair Work Commission assessed the evidence and arguments presented by both parties to determine whether the agreement was fairly negotiated and met the criteria for approval. The Commission examined the process of negotiation, the parties' conduct during negotiations, and the content of the agreement to ascertain fairness. Additionally, the Commission evaluated whether any provisions within the agreement were unfair, considering the balance of rights and obligations for the parties. After thorough analysis, the Commission concluded that the agreement had been fairly negotiated and contained provisions that met the statutory criteria for approval. The Commission found that the agreement was balanced and fair, with no provisions that were unfair within the meaning of the Fair Work Act.

In light of the findings, the Fair Work Commission approved the Maugeri (No 2) Family Trust, t/as Kelvin Way Pty Ltd and the CFMEU (Victorian Construction and General Division) Enterprise Agreement 2016-2018. The Commission's decision was grounded in the evidence that the agreement was fairly negotiated and contained provisions that met the statutory criteria for approval. The Commission found no grounds to oppose the approval of the agreement, thereby affirming its validity and enforceability under the Fair Work Act. The final orders of the Commission included the approval of the enterprise agreement, effective from the date of the decision.

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