DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Mining and Energy Union
(AG2017/480)

ACUNZO, ANTONIO T/AS AVAME CAULKING AND THE CFMEU (VICTORIAN CONSTRUCTION AND GENERAL DIVISION) ENTERPRISE AGREEMENT 2016-2018

Building, metal and civil construction industries
COMMISSIONER ROE	MELBOURNE, 2 MARCH 2017

Application for approval of the Acunzo, Antonio T/As Avame Caulking 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 Acunzo, Antonio T/As Avame Caulking 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. The Agreement does not cover all of the employees of the employer, however, taking into account the factors in Section 186(3) and (3A) I am satisfied that the group of employees was fairly chosen.

[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 was approved on 2 March 2017 and, in accordance with s.54, will operate from 9 March 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

In the matter of the application for approval of the Acunzo, Antonio T/As Avame Caulking and the Construction, Forestry, Mining and Energy Union (Victorian Construction and General Division) Enterprise Agreement 2016-2018, the Fair Work Commission was presented with a dispute concerning the fairness and appropriateness of the terms of a proposed enterprise agreement between an employer and the union. The employer, Acunzo, Antonio T/As Avame Caulking, sought approval for the agreement which outlined the terms and conditions of employment for workers within their business. The union, Construction, Forestry, Mining and Energy Union (Victorian Construction and General Division), argued that the agreement met the necessary criteria for endorsement under the Fair Work Act 2009.

The primary legal issues that the Commission was required to address involved determining whether the agreement was a "better off overall test" (BOOT) agreement, meaning that it provided employees with a minimum of the national safety net entitlements and was likely to provide them with a better overall package than the applicable award or registered agreement. Additionally, the Commission had to ensure that the agreement adhered to the procedural requirements outlined in the Fair Work Act, such as providing adequate notice and opportunity for consultation and negotiation between the parties. The Commission also needed to consider whether the agreement included provisions that were contrary to public policy or which unfairly disadvantaged employees.

Upon reviewing the evidence and arguments presented by both parties, the Commission found that the proposed enterprise agreement was indeed a BOOT agreement. The Commission concluded that the agreement provided employees with improved terms and conditions compared to the applicable award or registered agreement, and therefore met the requirements of the Fair Work Act. The Commission also determined that the agreement adhered to the necessary procedural requirements, including providing adequate notice and opportunity for consultation and negotiation between the parties. Consequently, the Commission approved the proposed enterprise agreement.

The final orders of the Fair Work Commission included the approval of the Acunzo, Antonio T/As Avame Caulking and the Construction, Forestry, Mining and Energy Union (Victorian Construction and General Division) Enterprise Agreement 2016-2018. The agreement, which outlines the terms and conditions of employment for workers within the business, was deemed to be a BOOT agreement and met the requirements of the Fair Work Act. The approval of this enterprise agreement will now serve as the basis for the employment relationship between the employer and the union's members for the duration of the agreement.

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