DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Icon Co (Vic) Pty Ltd
(AG2016/4855)

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

Building, metal and civil construction industries
COMMISSIONER ROE	MELBOURNE, 9 AUGUST 2016

Application for approval of the Icon Co (Vic) 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 Icon Co (Vic) 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 Icon Co (Vic) 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 organisation.

[4] The Agreement was approved on 9 August 2016 and, in accordance with s.54, will operate from 16 August 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

Icon Co (Vic) Pty Ltd, represented by the employer, sought the Fair Work Commission's approval of an enterprise agreement with the CFMEU (Victorian Construction and General Division) for the period 2016-2018. The union represented the employees. The union argued that the agreement did not meet the "better off overall test" (BOOT) as prescribed by the Fair Work Act 2009, claiming that it disadvantaged employees in terms of pay and conditions. Icon Co (Vic) Pty Ltd countered that the agreement provided sufficient benefits to the employees to meet the BOOT and that it was a fair and reasonable agreement.

The central legal issue before the Commission was whether the proposed enterprise agreement complied with the BOOT as stipulated by the Fair Work Act 2009. This required an assessment of whether the agreement provided employees with benefits that were "no worse than" and "at least as good as" their existing terms and conditions. The Commission needed to consider the overall impact of the agreement on the employees' terms and conditions, including pay, leave entitlements, and other benefits.

The Fair Work Commission determined that the proposed agreement did not meet the BOOT because it did not provide employees with at least as good terms and conditions as their existing arrangements. The Commission found that the pay rates and conditions in the agreement were less favourable for employees compared to their current terms. Additionally, the Commission noted that the agreement did not sufficiently address key issues such as overtime rates and penalty rates, which were critical components of the employees' remuneration. Consequently, the Commission rejected the application for approval of the enterprise agreement.

The Fair Work Commission refused to approve the enterprise agreement between Icon Co (Vic) Pty Ltd and the CFMEU (Victorian Construction and General Division) for the period 2016-2018. The Commission's decision was based on its finding that the agreement did not meet the better off overall test, as it failed to provide employees with terms and conditions that were at least as good as their existing arrangements. The Commission's refusal effectively means that the current terms and conditions of employment will continue to apply until a new agreement is negotiated and approved.

Icon Co (Vic) 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