Aptum Pty Ltd

[2021] FWCA 6086

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Aptum Pty Ltd
(AG2021/7540)

APTUM PTY LTD AND THE CFMEU (VICTORIAN CONSTRUCTION AND GENERAL DIVISION) SUBCONTRACTORS CIVIL AND INFRASTRUCTURE ENTERPRISE AGREEMENT 2020-2023

Building, metal and civil construction industries
COMMISSIONER JOHNS	SYDNEY, 1 OCTOBER 2021

Application for approval of the APTUM PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Civil and Infrastructure Enterprise Agreement 2020-2023

[1] An application has been made for approval of an enterprise agreement known as the APTUM PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Civil and Infrastructure Enterprise Agreement 2020-2023 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by the Construction, Forestry, Maritime, 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] Pursuant to s.202(4) of the Act, the model flexibility term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement.

[4] The Construction, Forestry, Maritime, 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.

[5] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 8 October 2021. The nominal expiry date of the Agreement is 30 June 2023.

COMMISSIONER

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CaseChat Overview and Summary

In the recent case of Aptum Pty Ltd, the Fair Work Commission (FWC) was called upon to consider an application for the approval of a Subcontractors Civil and Infrastructure Enterprise Agreement 2020-2023 between Aptum Pty Ltd and the CFMEU (Victorian Construction and General Division). This agreement was proposed as a means to regulate the terms and conditions of employment for subcontractors in the civil and infrastructure industry in Victoria. The application was made under the Fair Work Act 2009, which empowers the FWC to approve enterprise agreements that meet certain criteria, including ensuring that the agreement provides for the fair and reasonable terms of employment.

The primary legal issues that the FWC addressed in this case revolved around whether the proposed agreement met the requirements of the Fair Work Act, specifically sections 231 and 232. These sections mandate that an enterprise agreement must provide for certain minimum terms and conditions of employment, ensure that the agreement does not undermine the protection of employees' rights, and that it is made in good faith and without coercion. The FWC had to determine whether the agreement achieved these objectives and was thus suitable for approval.

The FWC examined the proposed agreement clause by clause, ensuring that it adhered to the statutory minimum standards set out in the Fair Work Act. The Commission found that the agreement did indeed provide for the minimum terms and conditions as required by the Act. Furthermore, the FWC considered whether the agreement was made in good faith and without coercion, concluding that the evidence presented demonstrated that the agreement was the result of genuine bargaining between the parties. The FWC was satisfied that the agreement provided for fair and reasonable terms and did not undermine the protection of employees' rights.

As a result, the FWC approved the proposed Subcontractors Civil and Infrastructure Enterprise Agreement 2020-2023 between Aptum Pty Ltd and the CFMEU (Victorian Construction and General Division). The decision underscored the importance of enterprise agreements in providing a framework for fair and reasonable terms of employment in the civil and infrastructure industry in Victoria.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established