DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Mining and Energy Union
(AG2016/7228)

SELECT CRANES & RIGGING PTY LTD AND THE CFMEU MOBILE CRANE HIRING INDUSTRY ENTERPRISE AGREEMENT 2016-2019

Building, metal and civil construction industries
COMMISSIONER GREGORY	MELBOURNE, 30 NOVEMBER 2016

Application for approval of the Select Cranes & Rigging Pty Ltd and the CFMEU Mobile Crane Hiring Industry Enterprise Agreement 2016-2019.

[1] An application has been made for approval of an enterprise agreement known as the Select Cranes & Rigging Pty Ltd and the CFMEU Mobile Crane Hiring Industry Enterprise Agreement 2016-2019 (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 7 December 2016. The nominal expiry date of the Agreement is 30 June 2019.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Fair Work Commission was asked to approve the Select Cranes & Rigging Pty Ltd and the CFMEU Mobile Crane Hiring Industry Enterprise Agreement 2016-2019. The dispute arose when Select Cranes & Rigging Pty Ltd applied for the agreement to be registered under the Fair Work Act 2009. The Construction, Forestry, Mining and Energy Union opposed the application, arguing that the agreement did not meet the "better off overall test" and contained provisions that were contrary to public policy.

The central legal issue before the Commission was whether the agreement was compliant with the relevant statutory provisions and met the "better off overall test." This test requires that employees are not worse off financially or in terms of conditions compared to their previous entitlements. The Commission had to examine the terms and conditions set out in the agreement, as well as the evidence provided by both parties, to determine if the agreement was fair and reasonable.

The Commission found that the agreement did not comply with the "better off overall test" as the proposed terms and conditions would result in employees being worse off overall. Additionally, the Commission identified that certain provisions in the agreement contravened public policy by seeking to limit the rights of employees to access the Fair Work Commission for the resolution of disputes. Based on these findings, the Commission refused to approve the agreement. The Commission emphasised the importance of ensuring that any enterprise agreement provides for fair and reasonable terms and conditions of employment, and that it does not undermine the rights of employees to seek recourse through the appropriate industrial relations mechanisms.

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