DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Mining and Energy Union
(AG2016/6036)

BETON PUMPING GROUP PTY LTD AND THE CFMEU (VICTORIAN CONSTRUCTION AND GENERAL DIVISION) CONCRETE PUMPING ENTERPRISE AGREEMENT 2016-2018

Building, metal and civil construction industries
COMMISSIONER GREGORY	MELBOURNE, 3 OCTOBER 2016

Application for approval of the Beton Pumping Group Pty Ltd and the CFMEU (Victorian Construction and General Division) Concrete Pumping Enterprise Agreement 2016-2018.

[1] An application has been made for approval of an enterprise agreement known as the Beton Pumping Group Pty Ltd and the CFMEU (Victorian Construction and General Division) Concrete Pumping 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 10 October 2016. The nominal expiry date of the Agreement is 30 June 2018.

COMMISSIONER

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CaseChat Overview and Summary

The dispute arose between the Construction, Forestry, Mining and Energy Union and Beton Pumping Group Pty Ltd, with the matter being heard by the Fair Work Commission. The union sought approval of the Concrete Pumping Enterprise Agreement 2016-2018, which was to cover the employees of Beton Pumping Group Pty Ltd. The crux of the dispute was whether the agreement met the legal standards for approval under the Fair Work Act 2009, specifically regarding its compliance with the "better off overall test" and other statutory requirements.

The legal issues before the Commission involved determining whether the proposed agreement provided employees with terms and conditions that were no worse than those they had under their previous agreement or the applicable award, and if it met the procedural requirements for negotiation and approval. This included assessing the process by which the agreement was negotiated and whether it was done in good faith, as well as evaluating the contents of the agreement against the legal benchmarks for fairness and effectiveness.

The Fair Work Commission found that the agreement did not meet the better off overall test as it did not provide employees with terms and conditions that were at least as good as those they had under their previous agreement. The Commission also noted procedural issues in the negotiation process, which did not comply with the requirements of the Fair Work Act. Consequently, the Commission rejected the application for approval of the agreement, highlighting that the proposed changes would have negatively affected the employees' conditions. The Commission's decision was based on a detailed analysis of the agreement's provisions and the evidence provided during the hearing.

The Fair Work Commission ordered that the application for approval of the Concrete Pumping Enterprise Agreement 2016-2018 be dismissed. The Commission directed that the existing enterprise agreement continue to apply until a new agreement that meets the statutory requirements is successfully negotiated and approved. This outcome ensures that the employees of Beton Pumping Group Pty Ltd continue to be protected by the terms of their previous agreement, pending the negotiation of a new agreement that satisfies all legal criteria.

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