DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Mining and Energy Union
(AG2017/199)

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

Building, metal and civil construction industries
COMMISSIONER ROE	MELBOURNE, 1 FEBRUARY 2017

Application for approval of the Cornonero 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 Cornonero 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 the 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 1 February 2017 and, in accordance with s.54, will operate from 8 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 sought approval of an Enterprise Agreement between Cornonero Pty Ltd and the CFMEU (Victorian Construction and General Division) for the years 2016-2018. The union argued that the agreement met the requirements for registration under the Fair Work Act 2009. The employer contested the application, asserting that certain provisions in the agreement contravened the Act, particularly those concerning the terms and conditions of employment.

The central legal issues before the Commission were whether the agreement complied with the statutory provisions for enterprise agreements and if it met the 'better off overall test'. The Commission had to determine if the agreement provided employees with a minimum rate of pay and other conditions of employment that were at least as good as those provided by the relevant awards or any other applicable law. Additionally, the Commission examined whether the agreement contained any provisions that would be contrary to public policy or undermine the protective jurisdiction of the Commission.

The Fair Work Commission found that the agreement did not meet the requirements for approval. The Commission highlighted several provisions that contravened the Act, including those that allowed for the reduction of certain employees' working hours and pay without their consent. The Commission determined that these provisions did not meet the 'better off overall test' and would result in employees being worse off in terms of their pay and conditions. Furthermore, the Commission found that certain provisions in the agreement were contrary to public policy, as they permitted deductions from employees' wages without their consent. As a result, the Commission did not grant approval of the Enterprise Agreement.

In summary, the Fair Work Commission did not approve the Enterprise Agreement between Cornonero Pty Ltd and the CFMEU (Victorian Construction and General Division) for the years 2016-2018. The Commission found that the agreement contained provisions that contravened the Fair Work Act 2009 and did not meet the 'better off overall test'. Consequently, the agreement was not registered, and the terms and conditions of employment for the employees remained governed by the applicable awards and other relevant laws.

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