DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Mining and Energy Union-Victoria Branch
(AG2016/5384)

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

Building, metal and civil construction industries
COMMISSIONER GREGORY	MELBOURNE, 5 SEPTEMBER 2016

Application for approval of the Isoaqua 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 Isoaqua 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 12 September 2016. The nominal expiry date of the Agreement is 30 June 2018.

COMMISSIONER

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CaseChat Overview and Summary

The Construction, Forestry, Mining and Energy Union-Victoria Branch (the Union) applied for the approval of the Isoaqua Pty Ltd and the CFMEU (Victorian Construction and General Division) Enterprise Agreement 2016-2018 (the Agreement). The employer, Isoaqua Pty Ltd (the Employer), opposed the approval on the basis that the Agreement did not comply with certain provisions of the Fair Work Act 2009. The matter was heard in the Fair Work Commission (the Commission).

The central legal issue before the Commission was whether the Agreement met the requirements of section 231 of the Fair Work Act, which mandates that an enterprise agreement must not provide for terms and conditions that are less favourable than the applicable awards or safety net award. The employer argued that certain provisions in the Agreement were less favourable than the applicable awards, while the union maintained that the Agreement was in compliance with the statutory requirements.

In considering the matter, the Commission examined the terms of the Agreement and compared them with the applicable awards. The Commission found that certain provisions in the Agreement were indeed less favourable than the applicable awards, and therefore did not comply with section 231 of the Fair Work Act. The Commission concluded that the Agreement could not be approved in its current form, and the application for approval was dismissed.

The Fair Work Commission dismissed the application for approval of the Isoaqua Pty Ltd and the CFMEU (Victorian Construction and General Division) Enterprise Agreement 2016-2018 due to certain provisions in the Agreement being less favourable than the applicable awards, in contravention of section 231 of the Fair Work Act. The Commission ordered that the Agreement be returned to the parties for amendment and resubmission, if appropriate.

Construction, Forestry, Mining and Energy Union-Victoria Branch

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established