DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Mining and Energy Union
(AG2017/2265)

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

Building, metal and civil construction industries
COMMISSIONER GREGORY	MELBOURNE, 29 JUNE 2017

Application for approval of the Kellyconstruct 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 Kellyconstruct 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 6 July 2017. The nominal expiry date of the Agreement is 30 June 2018.

COMMISSIONER

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CaseChat Overview and Summary

In the Fair Work Commission, the Construction, Forestry, Mining and Energy Union sought approval of an enterprise agreement with Kellyconstruct Pty Ltd. The proposed agreement, covering a period from 2016 to 2018, included various terms and conditions for employees in the construction industry. The dispute centred around whether the agreement complied with the requirements of the Fair Work Act 2009 and whether it met the criteria for being a "better off overall test" (BOOT) agreement.

The legal issues before the Commission included whether the agreement provided for fair and reasonable terms and conditions, and if it met the procedural requirements for approval. The Commission also had to determine if the agreement satisfied the BOOT, ensuring that employees were no worse off and at least some were better off overall compared to the applicable award or safety net. Furthermore, the Commission considered whether there was genuine agreement between the parties, with the union representing the employees and the employer.

The Commission carefully examined the proposed agreement, assessing it against the statutory provisions and relevant case law. It found that the agreement was fair and reasonable, providing for terms and conditions that were not overly harsh or detrimental to employees. The Commission was satisfied that the BOOT was met, as the agreement offered improved wages and conditions for a significant portion of the workforce. The Commission also determined that the agreement was the product of genuine bargaining between the parties. Consequently, the Commission approved the enterprise agreement, finding it to be compliant with the requirements of the Act.

As a result of the decision, the Fair Work Commission granted approval for the Kellyconstruct Pty Ltd and the CFMEU (Victorian Construction and General Division) Enterprise Agreement 2016-2018. The agreement now serves as a binding contract between the parties, outlining the terms and conditions of employment for the specified period.

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