DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Mining and Energy Union
(AG2016/5862)

ASSOCIATED RIGGING AUSTRALIA PTY LTD AND THE CFMEU MOBILE CRANE HIRING INDUSTRY ENTERPRISE AGREEMENT 2016-2019

Building, metal and civil construction industries
COMMISSIONER LEE	MELBOURNE, 5 OCTOBER 2016

Application for approval of the ASSOCIATED RIGGING AUSTRALIA 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 ASSOCIATED RIGGING AUSTRALIA 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 12 October 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 applicant, the Construction, Forestry, Mining and Energy Union (CFMEU), sought approval for the Associated Rigging Australia Pty Ltd and the CFMEU Mobile Crane Hiring Industry Enterprise Agreement 2016-2019. The respondent, Associated Rigging Australia Pty Ltd, objected to the approval of the agreement on the basis that it did not meet the requirements of section 233 of the Fair Work Act 2009. The matter was heard in the Fair Work Commission.

The primary legal issue before the Commission was whether the enterprise agreement met the criteria for approval under the Fair Work Act 2009. Specifically, the respondent argued that the agreement did not comply with the requirement that it provide for the "no disadvantage" test, which ensures that the agreement does not place employees in a worse position than they would be in under the applicable award or safety net. The Commission had to determine whether the agreement met this requirement and if it should be approved.

The Fair Work Commission found that the agreement did not comply with the "no disadvantage" test as it failed to provide for adequate protections for employees in certain circumstances. The Commission noted that the agreement did not adequately address the issue of employee entitlements in cases where an employee was transferred to another employer within the enterprise. The Commission also found that the agreement did not provide for adequate protections for employees in cases of redundancy. As a result, the Commission refused to approve the agreement.

The Fair Work Commission refused to approve the Associated Rigging Australia Pty Ltd and the CFMEU Mobile Crane Hiring Industry Enterprise Agreement 2016-2019. The Commission found that the agreement did not meet the "no disadvantage" test as it failed to provide adequate protections for employees in certain circumstances. The Commission did not grant the approval sought by the CFMEU.

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