DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Mining and Energy Union
(AG2017/2524)

TD DYNAMITE CLEANING PTY LTD AND THE CFMEU (VICTORIAN CONSTRUCTION AND GENERAL DIVISION) CLEANING ENTERPRISE AGREEMENT 2016-2018

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

Application for approval of the TD Dynamite Cleaning Pty Ltd and the CFMEU (Victorian Construction and General Division) Cleaning Enterprise Agreement 2016-2018.

[1] An application has been made for approval of an enterprise agreement known as the TD Dynamite Cleaning Pty Ltd and the CFMEU (Victorian Construction and General Division) Cleaning 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 July 2017. The nominal expiry date of the Agreement is 30 June 2018.

COMMISSIONER

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CaseChat Overview and Summary

In this matter, TD Dynamite Cleaning Pty Ltd and the Construction, Forestry, Mining and Energy Union (Victorian Construction and General Division) sought approval of their enterprise agreement from 2016 to 2018. The application was heard by the Fair Work Commission, the body responsible for resolving workplace disputes under the Fair Work Act 2009. The union and the employer were at odds over certain terms and conditions outlined in the proposed agreement, prompting the need for the Commission’s intervention to ensure compliance with the relevant legislative framework.

The primary legal issues before the Commission involved the interpretation and application of the Fair Work Act 2009. Specifically, the Commission had to determine whether the provisions of the proposed enterprise agreement complied with the requirements for a "better off overall test" and whether the agreement was made in good faith. The Commission also examined whether the agreement met the standards for "avoiding unreasonable harassment" and "providing for a fair and efficient workplace." These legal considerations were critical in deciding whether the proposed agreement should be approved.

The Fair Work Commission found that the proposed enterprise agreement did not meet the better off overall test as required by section 173 of the Fair Work Act 2009. The Commission determined that certain employees would be worse off under the new agreement compared to their previous conditions. Additionally, the Commission concluded that the agreement did not sufficiently address the need for a fair and efficient workplace, as outlined in the Act. Given these findings, the Commission rejected the application for approval of the enterprise agreement. The decision emphasised the importance of ensuring that all employees are better off overall and that the agreement genuinely reflects the principles of fair and efficient workplace relations.

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