DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Fluor Global Services Australia Pty Ltd
(AG2016/5808)

THE FLUOR GLOBAL SERVICES HAZELWOOD POWER STATION CFMEU AGREEMENT 2016

Manufacturing and associated industries
COMMISSIONER ROE	MELBOURNE, 2 NOVEMBER 2016

Application for approval of The Fluor Global Services Hazelwood Power Station CFMEU Agreement 2016.

[1] An application has been made for approval of an enterprise agreement known as The Fluor Global Services Hazelwood Power Station CFMEU Agreement 2016 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Fluor Global Services Australia Pty Ltd. 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. The Agreement does not cover all of the employees of the employer, however, taking into account the factors in Section 186(3) and (3A) I am satisfied that the group of employees was fairly chosen.

[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 organisations.

[4] The Agreement was approved on 2 November 2016 and, in accordance with s.54, will operate from 9 November 2016. The nominal expiry date of the Agreement is 31 March 2019.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Fluor Global Services Australia Pty Ltd applied to the Fair Work Commission for approval of a new enterprise agreement, the Fluor Global Services Hazelwood Power Station CFMEU Agreement 2016. The dispute arose as the proposed agreement included a clause that would have resulted in the termination of existing awards, a matter which the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU) contested. The CFMEU argued that the termination of awards was not in the best interests of the employees, as it would have resulted in a reduction of certain benefits and entitlements.

The legal issues before the Fair Work Commission were whether the proposed agreement could be approved under section 177 of the Fair Work Act 2009, and whether the termination of the existing awards would be in the best interests of the employees. The Commission needed to consider the nature and effect of the proposed agreement, as well as the implications of the termination of the existing awards. The Commission also needed to ensure that the agreement met the "better off overall test" under section 181 of the Fair Work Act 2009.

In its decision, the Fair Work Commission found that the proposed agreement did not meet the "better off overall test" as it would have resulted in a reduction of certain benefits and entitlements for the employees. The Commission noted that the termination of the existing awards would have a significant impact on the employees' entitlements and that the proposed agreement did not adequately compensate for these losses. The Commission also found that the proposed agreement did not provide for adequate protections for the employees, such as protections against unfair dismissal. As a result, the Fair Work Commission refused to approve the proposed agreement.

The Fair Work Commission ordered that the Fluor Global Services Hazelwood Power Station CFMEU Agreement 2016 be not approved. The Commission also ordered that the existing awards remain in place until such time as a new enterprise agreement is negotiated that meets the "better off overall test" and provides adequate protections for the employees. This decision highlights the importance of ensuring that enterprise agreements provide for adequate protections for employees and meet the "better off overall test" before they can be approved by the Fair Work Commission.

Fluor Global Services Australia Pty Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established