DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Mining and Energy Union
(AG2017/252)

D & D MELBOURNE EXCAVATIONS PTY LTD AND THE CFMEU (VICTORIAN CONSTRUCTION AND GENERAL DIVISION) ENTERPRISE AGREEMENT 2016 -2018

Building, metal and civil construction industries
COMMISSIONER GREGORY	MELBOURNE, 8 FEBRUARY 2017

Application for approval of the D & D Melbourne Excavations 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 D & D Melbourne Excavations 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 15 February 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 Fair Work Commission, the Construction, Forestry, Mining and Energy Union (CFMEU) applied for approval of the D & D Melbourne Excavations Pty Ltd and the CFMEU (Victorian Construction and General Division) Enterprise Agreement 2016-2018. The application was made by the CFMEU on behalf of its members who were employees of D & D Melbourne Excavations Pty Ltd. The dispute centred on whether the proposed enterprise agreement met the legal requirements for approval under the Fair Work Act 2009.

The primary legal issues that the Commission had to address were whether the agreement was a "better off overall test" (BOOT) agreement and whether it contained the mandated minimum terms and conditions as stipulated by the Fair Work Act. The Commission also considered whether the agreement was negotiated in good faith and if it complied with procedural fairness requirements. Additionally, the Commission examined if the agreement had any adverse effects on employees not covered by it.

The Commission found that the agreement passed the BOOT, as it was demonstrated to be better than the applicable award or any existing enterprise agreement. It was also confirmed that the agreement contained all the mandated minimum terms and conditions. The Commission further determined that the agreement was negotiated in good faith and did not contravene any procedural fairness principles. The Commission concluded that the agreement would not have any adverse effects on non-party employees. Therefore, the Commission approved the enterprise agreement. The approval was made subject to specific conditions and monitoring to ensure compliance with the Fair Work Act.

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