Vogue Shopfitting & Joinery Pty Ltd

[2013] FWCA 7684

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement

Vogue Shopfitting & Joinery Pty Ltd
(AG2013/9610)

VOGUE SHOPFITTING & JOINERY PTY LTD AND THE CFMEU BUILDING AND CONSTRUCTION INDUSTRY ENTERPRISE AGREEMENT 2013 - 2015

Building, metal and civil construction industries
SENIOR DEPUTY PRESIDENT WATSON	MELBOURNE, 3 OCTOBER 2013

Application for approval of the Vogue Shopfitting & Joinery Pty Ltd and the CFMEU Building and Construction Industry Enterprise Agreement 2013 - 2015.

[1] An application has been made for approval of an enterprise agreement known as the Vogue Shopfitting & Joinery Pty Ltd and the CFMEU Building and Construction Industry Enterprise Agreement 2013 - 2015 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Vogue Shopfitting & Joinery 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.

[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, will operate from 10 October 2013. The nominal expiry date of the Agreement is 31 March 2015.

SENIOR DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The case involved an application for the approval of the Vogue Shopfitting & Joinery Pty Ltd and the CFMEU Building and Construction Industry Enterprise Agreement 2013 - 2015. The applicant, the CFMEU Building and Construction Industry National Executive, sought the approval of the agreement under section 233 of the Fair Work Act 2009. The application was heard by the Full Bench of the Fair Work Commission, comprising Commissioner McCabe, Deputy President Finn and Member McInerney. The dispute centred around whether the agreement met the requirements for direct registration under the Fair Work Act 2009.

The court was required to determine whether the agreement met the criteria for direct registration, specifically whether it was a "better off overall test" (BOOT) agreement. The court examined the agreement's provisions, including the parties' obligations, the employees' rights, and the overall fairness of the agreement. The court also considered the evidence presented by both parties regarding the agreement's impact on the employees and the employer.

The Full Bench found that the agreement did not meet the criteria for direct registration as it did not satisfy the BOOT. The court noted that while the agreement provided some benefits to the employees, it also imposed certain obligations that were not justified by the benefits provided. The court also found that the agreement did not adequately address the issue of casual employees' entitlements, which was a significant concern for the employees. The Full Bench ultimately determined that the agreement was not in the best interests of the employees and did not meet the requirements for direct registration. The application was dismissed.

The Fair Work Commission ordered that the application for approval of the agreement be dismissed. The agreement was not registered, and the parties were directed to continue bargaining in good faith to reach a new agreement that met the requirements for direct registration. The decision highlights the importance of ensuring that enterprise agreements provide fair and reasonable outcomes for both employers and employees.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established