DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Mining and Energy Union
(AG2017/2426)

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

Building, metal and civil construction industries
COMMISSIONER GREGORY	MELBOURNE, 30 JUNE 2017

Application for approval of the Novawall Australia 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 Novawall Australia 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 7 July 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 applicants in this matter, Novawall Australia Pty Ltd and the Construction, Forestry, Mining and Energy Union (Victorian Construction and General Division), sought approval of an enterprise agreement under the Fair Work Act 2009. The dispute came before the Fair Work Commission, which has jurisdiction to make such determinations. The applicants submitted that the agreement, which sets out terms and conditions of employment for certain employees, was appropriate for approval as it meets the requirements of the Act, including the "better off overall test". The respondents, who included the Australian Building and Construction Commission and others, argued that the agreement should not be approved as it did not satisfy the better off overall test and contained provisions that were contrary to public policy.

The court was required to determine whether the agreement met the statutory requirements for approval, particularly whether it passed the better off overall test. This test requires that employees covered by the agreement be no worse off financially and, in some cases, be better off overall than they would be under the applicable award or safety net. The court also had to consider whether the agreement contained any provisions that were contrary to public policy. In conducting its analysis, the court examined the financial implications of the agreement for employees and compared these to the applicable award provisions.

The Fair Work Commission found that the agreement did not meet the better off overall test as some employees would be worse off financially. The court also determined that certain provisions of the agreement were contrary to public policy, specifically provisions that allowed for the payment of less than the minimum award rates to certain employees. The court concluded that the agreement did not satisfy the requirements of the Act and was not appropriate for approval. The applicants' application for approval of the enterprise agreement was dismissed.

The court's final orders included the dismissal of the application for approval of the enterprise agreement and a direction to the parties to negotiate in good faith to reach an agreement that meets the requirements of the Act. The court also ordered that the agreement be not applied or relied upon in any way until such time as a new agreement is approved.

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