DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Mining and Energy Union
(AG2016/6052)

IND WINDOW FABRICATIONS PTY LTD AND THE CFMEU (VICTORIAN CONSTRUCTION AND GENERAL DIVISION) ENTERPRISE AGREEMENT 2016-2018

Building, metal and civil construction industries
COMMISSIONER GREGORY	MELBOURNE, 4 OCTOBER 2016

Application for approval of the IND WINDOW FABRICATIONS 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 IND WINDOW FABRICATIONS 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 11 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 Construction, Forestry, Mining and Energy Union, as the employer’s representative, sought approval of an enterprise agreement with IND WINDOW FABRICATIONS PTY LTD, with the Australian Building and Construction Commission (ABCC) acting as the umpire. The agreement covered the period from 2016 to 2018 and was submitted for approval under the Fair Work Act 2009. The central dispute centred on whether the proposed agreement was in the best interests of the employees covered by it, taking into account the provisions of the Fair Work Act.

The court was required to determine whether the enterprise agreement met the 'better off overall test' (BOOT) as stipulated in section 230 of the Fair Work Act. This involved assessing whether the proposed terms and conditions of employment were more favourable than those provided under the applicable awards or other industrial instruments. The court also needed to consider whether the agreement provided fair and reasonable terms for employees and whether any provisions were unfair, as outlined in section 232 of the Act.

In reaching its decision, the court examined the various provisions of the agreement and compared them with the relevant award provisions. The court found that the proposed enterprise agreement did indeed meet the BOOT, as it provided for terms and conditions that were more favourable to the employees than those under the applicable awards. The court was satisfied that the agreement was fair and reasonable, with no provisions being deemed unfair. Consequently, the court approved the agreement, finding it to be in the best interests of the employees involved.

The final orders of the court included the approval of the IND WINDOW FABRICATIONS PTY LTD and the CFMEU (Victorian Construction and General Division) Enterprise Agreement 2016-2018, with the agreement to take effect from the date of the court's decision. The court also directed that the approved agreement be registered with the Fair Work Commission and that the ABCC be notified of the approval.

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