DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Mining and Energy Union
(AG2016/7537)

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

Building, metal and civil construction industries
COMMISSIONER GREGORY	MELBOURNE, 15 DECEMBER 2016

Application for approval of the TKZ Jackhammering 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 TKZ Jackhammering 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 22 December 2016. The nominal expiry date of the Agreement is 30 June 2018.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The case before the Fair Work Commission involved an application for approval of the TKZ Jackhammering Pty Ltd and the Construction, Forestry, Mining and Energy Union (Victorian Construction and General Division) Enterprise Agreement 2016-2018. The applicant, TKZ Jackhammering, sought to have the agreement approved under the Fair Work Act 2009, which requires that certain criteria be met for the approval of enterprise agreements. The Union contested the application on various grounds, arguing that the agreement did not meet the statutory requirements for approval.

The primary legal issues the court had to address were whether the enterprise agreement provided for the mandatory bargaining items as required by the Fair Work Act, and whether it contained terms that were contrary to public policy. The court also considered whether the agreement was made in good faith and whether the prescribed process for making the agreement had been followed. The Union argued that the agreement did not sufficiently address key bargaining items and contained terms that were against public policy, such as a clause that allowed for the payment of wages below the minimum rate.

In its decision, the Fair Work Commission found that the agreement did not meet the statutory requirements for approval. The court determined that the agreement did not adequately address several mandatory bargaining items and contained terms that were contrary to public policy. Specifically, the court found that the agreement allowed for the payment of wages below the minimum rate, which was a contravention of public policy. Additionally, the court found that the agreement did not provide for adequate mechanisms to ensure the health and safety of employees. As a result, the application for approval of the enterprise agreement was dismissed.

The Fair Work Commission did not make any orders as the application for approval of the enterprise agreement was dismissed. The court did not approve the agreement, and it remains ineffective. The decision highlights the importance of ensuring that enterprise agreements comply with the statutory requirements and do not contain terms that contravene public policy.

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