Building unions overturn EBAs on appeal

Building unions overturn EBAs on appeal.png

Building unions overturn EBAs on appeal

The FWC, in a majority decision, has quashed on appeal an earlier decision by DP Boyce to approve two enterprise bargaining agreements. Undertakings provided by the employer failed to sway the Full Bench, and the appeal was upheld.

The appeal by various building unions (CFMMEU, AMWU, AWU and CEPU) was in response to a single Commissioner approving two agreements in December 2019, being the Operations Services Production Agreement 2018 (Production Agreement) and the Operations Services Maintenance Agreement 2018 (Maintenance Agreement).

VP Hatcher and DP Booth ruled that the agreements contained the following errors:

  • The analysis of the Better Off Overall Test (BOOT) proceeded upon a wrong mathematical premise between the Agreements rates and the relevant award;

  • A failure to consider BOOT implications as the proposed agreements didn’t specify  an hourly or weekly rate of remuneration, and subsequently, full-time rates for employees working alternate rosters couldn’t be determined; and

  • Reasonable steps had not taken place explaining to employees certain aspects of the agreements (rates and hours for part-time employees, rates of pay for casuals, calculation of the salary rates or the method for calculating salary rates for full-time employees working alternate rosters.

At the Commission’s request, the company did provide a number of undertakings in an attempt to allay their concerns, but the majority were not convinced and the appeal against the initial granting of the EBAs.

One of the fundamental elements of successful enterprise bargaining negotiations is clear and precise communication. However, that was not overly apparent in this case. As described by DP Colman, “There was uncertainty in the companies’ explanation to employees about the way in which salaries for new rosters will be set”.


For queries about negotiating enterprise agreements or other employment questions, please contact Dean Cameron at Workforce Advisory Lawyers – We Know Employment Law on 0417 622 178, 1300 WAL LAW or via email to

Disclaimer: This information is provided as general advice on workplace relations and employment law. It does not constitute legal advice, and it is always advisable to seek further information regarding specific workplace issues. Liability limited by a scheme approved under professional standards legislation.

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