DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Mining and Energy Union
(AG2016/6176)

MBBC TRUST NO 2 T/AS MULGRAVE BRICKLAYING & BUILDING CONTRACTORS P/L AND THE CFMEU (VICTORIAN CONSTRUCTION AND GENERAL DIVISION) BRICK LAYING ENTERPRISE AGREEMENT 2016-2018

Building, metal and civil construction industries
COMMISSIONER GREGORY	MELBOURNE, 7 OCTOBER 2016

Application for approval of the MBBC Trust No 2 T/As Mulgrave Bricklaying & Building Contractors P/L and the CFMEU (Victorian Construction and General Division) Brick Laying Enterprise Agreement 2016-2018.

[1] An application has been made for approval of an enterprise agreement known as the MBBC Trust No 2 T/As Mulgrave Bricklaying & Building Contractors P/L and the CFMEU (Victorian Construction and General Division) Brick Laying 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 14 October 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 applicants, the MBBC Trust No 2 trading as Mulgrave Bricklaying & Building Contractors P/L and the Construction, Forestry, Mining and Energy Union (Victorian Construction and General Division), sought approval of the terms of the Brick Laying Enterprise Agreement 2016-2018 from the Fair Work Commission. The Commission, constituted as a Full Bench, was required to determine whether the agreement met the requirements of the Fair Work Act 2009.

The key issue before the court was whether the agreement contained a clause that was not bona fide as it related to the protection of employees from discrimination and vilification. The applicants argued that the clause in question was necessary to ensure that employees were not subjected to discriminatory or vilifying behaviour in the workplace. The respondents contended that the clause was not necessary and that it imposed an undue burden on employers.

The court found that the clause in question was not bona fide as it related to the protection of employees from discrimination and vilification. The court held that the clause was not necessary to achieve the objective of protecting employees from such behaviour and that it imposed an undue burden on employers. The court further held that the clause was not consistent with the principles of the Fair Work Act, which seek to promote harmonious, productive and cooperative workplace relations. The court rejected the applicants' argument that the clause was necessary to ensure that employees were not subjected to discriminatory or vilifying behaviour in the workplace.

The court did not approve the agreement as it contained a clause that was not bona fide as it related to the protection of employees from discrimination and vilification. The court ordered that the agreement be returned to the parties for amendment.

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