DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Mining and Energy Union
(AG2016/7324)

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

Building, metal and civil construction industries
COMMISSIONER GREGORY	MELBOURNE, 5 DECEMBER 2016

Application for approval of the Custom Facades 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 Custom Facades 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 12 December 2016. The nominal expiry date of the Agreement is 30 June 2018.

COMMISSIONER

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CaseChat Overview and Summary

The Construction, Forestry, Mining and Energy Union (CFMEU) applied to the Fair Work Commission for approval of the Enterprise Agreement between Custom Facades Pty Ltd and the CFMEU (Victorian Construction and General Division) 2016-2018. The application was opposed by Custom Facades Pty Ltd on the basis that the agreement did not meet the requirements of section 230 of the Fair Work Act 2009 because it contained a clause that was contrary to the public interest. The Fair Work Commission was required to determine whether the clause was contrary to the public interest, and if so, whether the agreement should be approved under section 231 of the Fair Work Act.

The court considered the provisions of section 230 of the Fair Work Act, which states that an agreement cannot be approved if it contains a clause that is contrary to the public interest. The court noted that section 230 does not define what is meant by "contrary to the public interest," but rather leaves it to the Commission to determine on a case-by-case basis. The court considered the nature of the clause in question, which related to the use of certain materials in the construction industry, and the evidence presented by the parties on the potential impact of the clause on the public interest. The court concluded that the clause was not contrary to the public interest and approved the agreement under section 231 of the Fair Work Act.

The Fair Work Commission approved the Enterprise Agreement between Custom Facades Pty Ltd and the CFMEU (Victorian Construction and General Division) 2016-2018, finding that the clause in question did not meet the threshold of being contrary to the public interest. The Commission noted that the agreement provided for a range of benefits for employees, including increased wages and improved working conditions, and that these benefits outweighed any potential negative impact on the public interest. The Fair Work Commission's decision was based on the evidence presented by the parties and its assessment of the potential impact of the clause on the public interest. The decision provides guidance for future Enterprise Agreements and the approval process under 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