DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Mining and Energy Union-Victoria Branch
(AG2016/5489)

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

Building, metal and civil construction industries
COMMISSIONER GREGORY	MELBOURNE, 9 SEPTEMBER 2016

Application for approval of the Nisbett 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 Nisbett 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 16 September 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 case involved an application for the approval of the Nisbett Pty Ltd and the Construction, Forestry, Mining and Energy Union (Victorian Construction and General Division) Enterprise Agreement 2016-2018. The applicant, Nisbett Pty Ltd, sought approval from the Fair Work Commission under section 232 of the Fair Work Act 2009. The respondent, the CFMEU, raised objections to the agreement. The matter was heard in the Fair Work Commission.

The primary legal issue was whether the Enterprise Agreement met the requirements of section 230 of the Fair Work Act, which mandates that agreements must be in writing, set out the terms and conditions of employment, and be certified as a bargain genuinely made between employers and employees. The CFMEU argued that the agreement did not meet these criteria as it contained provisions that were not genuinely bargained and included terms that were not in the best interests of the employees.

The Fair Work Commission found that several provisions in the agreement did not reflect genuine bargaining between the parties. The Commission noted that some terms were unilaterally imposed by the employer and did not result from a genuine negotiation process. Additionally, the Commission concluded that certain provisions were not in the best interests of the employees, as they did not adequately protect employee rights and entitlements. Consequently, the application for approval of the Enterprise Agreement was dismissed.

The Fair Work Commission ordered that the Nisbett Pty Ltd and the CFMEU (Victorian Construction and General Division) Enterprise Agreement 2016-2018 not be approved. The Commission directed the parties to negotiate a new agreement that genuinely reflects the terms of a bargain made between the employer and the employees, and which is in the best interests of the employees.

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