DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Mining and Energy Union
(AG2017/1969)

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

Building, metal and civil construction industries
COMMISSIONER GREGORY	MELBOURNE, 9 JUNE 2017

Application for approval of the Bena Services 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 Bena Services 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 16 June 2017. The nominal expiry date of the Agreement is 30 June 2018.

COMMISSIONER

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CaseChat Overview and Summary

The applicants, Bena Services Pty Ltd and the Construction, Forestry, Mining and Energy Union (Victorian Construction and General Division), sought approval for their Enterprise Agreement 2016 - 2018 from the Fair Work Commission. The agreement was submitted under section 232 of the Fair Work Act 2009, aiming to establish the terms and conditions of employment for the employees of Bena Services Pty Ltd. The primary dispute centred on the procedural fairness of the Commission's consideration of the application and the adequacy of the agreement in meeting the statutory requirements for approval.

The court was required to address several legal issues, including whether the Commission had breached the procedural fairness doctrine by failing to give the applicants a proper opportunity to respond to a draft determination. Additionally, the court needed to assess whether the Enterprise Agreement complied with the statutory criteria for approval, particularly in terms of whether it provided for the proper payment of employees and the establishment of a safety committee as required by the Fair Work Act.

The Fair Work Commission found that there had been no breach of procedural fairness as the applicants had been given a sufficient opportunity to respond to the issues raised in the draft determination. Regarding the compliance of the Enterprise Agreement, the Commission determined that it met all statutory requirements for approval. The agreement was found to adequately address the proper payment of employees and the establishment of a safety committee. Consequently, the Commission approved the Enterprise Agreement 2016 - 2018.

The Fair Work Commission approved the Enterprise Agreement 2016 - 2018 between Bena Services Pty Ltd and the Construction, Forestry, Mining and Energy Union (Victorian Construction and General Division). The Commission found that the procedural fairness requirements were met and that the agreement met all statutory criteria for approval.

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