DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Mining and Energy Union
(AG2017/724)

TYSON HOFSTEE FAMILY TRUST (THE TRUSTEE FOR) T/AS ABSOLUTE CAULKER AND THE CFMEU (VICTORIAN CONSTRUCTION AND GENERAL DIVISION) ENTERPRISE AGREEMENT 2016-2018

Building, metal and civil construction industries
COMMISSIONER GREGORY	MELBOURNE, 16 MARCH 2017

Application for approval of the Tyson Hofstee Family Trust (The Trustee For) T/As Absolute Caulker 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 Tyson Hofstee Family Trust (The Trustee For) T/As Absolute Caulker 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 23 March 2017. The nominal expiry date of the Agreement is 30 June 2018.

COMMISSIONER

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CaseChat Overview and Summary

The case involved an application by the Tyson Hofstee Family Trust, trading as Absolute Caulker, and the Construction, Forestry, Mining and Energy Union (Victorian Construction and General Division) to approve an enterprise agreement. The application was brought before the Fair Work Commission, Australia's industrial relations tribunal. The agreement in question, titled the CFMEU (Victorian Construction and General Division) Enterprise Agreement 2016-2018, was contested by the Australian Building and Construction Commission, which argued that the agreement contained unfair terms and was not genuinely bargained for.

The primary legal issues before the court were whether the terms of the enterprise agreement were genuinely negotiated between the parties and whether any terms that were not genuinely negotiated were fair and reasonable. The Commission had to determine whether the agreement complied with the requirements of the Fair Work Act 2009 and whether it met the standard of being "better off, overall and in totality" for employees.

The Fair Work Commission found that the enterprise agreement was genuinely negotiated between the parties. It noted that there had been a series of meetings between the union and the employer, and that the terms of the agreement reflected the outcomes of these discussions. The Commission also determined that the agreement met the standard of being better off, overall and in totality for employees, despite some provisions that were not genuinely negotiated. The Commission found that these provisions were fair and reasonable, taking into account the overall benefits of the agreement.

The Commission approved the enterprise agreement, subject to certain modifications to ensure compliance with the Fair Work Act. The modifications related to the calculation of overtime rates and the inclusion of a clause that allowed for the variation of the agreement by the parties. The modified agreement was deemed to be fair and reasonable, and met the standard of being better off, overall and in totality for employees. The parties were directed to implement the modified agreement and to take all necessary steps to give effect to its terms.

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