DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Burton Industries Pty Ltd
(AG2021/6407)

BURTON INDUSTRIES PTY LTD AND THE CFMEU (VICTORIAN CONSTRUCTION AND GENERAL DIVISION) SUBCONTRACTORS COOLROOM BUILDER ENTERPRISE AGREEMENT 2020-2023

Building, metal and civil construction industries
DEPUTY PRESIDENT COLMAN	MELBOURNE, 4 AUGUST 2021

Application for approval of the Burton Industries Pty Ltd and the CFMEU (Victorian Construction and General Division) Subcontractors Coolroom Builder Enterprise Agreement 2020-2023.

[1] Burton Industries Pty Ltd has made an application for approval of an enterprise agreement known as the Burton Industries Pty Ltd and the CFMEU (Victorian Construction and General Division) Subcontractors Coolroom Builder Enterprise Agreement 2020-2023 (the Agreement) pursuant to s 185 of the Fair Work Act 2009 (the Act). The Agreement is a single enterprise agreement.

[2] While the application is generally in order, the employees were not provided with the voting instructions seven clear days before the vote. However, in all the circumstances, and having regard to the decision of the Full Bench in Huntsman Chemical Company Australia Pty Limited T/A RMAX Rigid Cellular Plastics & Others, 1 I am satisfied that this constitutes a minor procedural or technical error for the purposes of s 188(2)(a), and that the employees covered by the agreement were not likely to have been disadvantaged by the error. As a result, I am satisfied that the Agreement has been genuinely agreed within the meaning of s 188(2) of the Act.

[3] On the basis of the material contained in the application and accompanying declaration, I am satisfied that each of the requirements of ss 186, 187 and 188 as are relevant to this application for approval has been met.

[4] 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.

[5] The Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU), 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) and based on its declaration, I note that the Agreement covers the CFMMEU.

[6] The Agreement was approved on 4 August 2021 and, in accordance with s 54, will operate from 11 August 2021. The nominal expiry date of the Agreement is 30 June 2023.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

1 [2019] FWCFB 318

CaseChat Overview and Summary

Burton Industries Pty Ltd and the CFMEU (Victorian Construction and General Division) Subcontractors applied for approval of their enterprise agreement for the period 2020-2023. The matter was heard in the Fair Work Commission. The applicants sought approval of the agreement under the Fair Work Act 2009, specifically section 232. The agreement aimed to establish terms and conditions of employment for coolroom builders employed by Burton Industries, including wage rates, hours of work, and other employment-related matters.

The legal issues before the Commission centred on whether the agreement complied with the procedural and substantive requirements of the Fair Work Act. Procedurally, the Commission needed to verify if the agreement was made in accordance with the relevant provisions of the Act, including whether proper consultation and bargaining occurred. Substantively, the Commission assessed whether the terms and conditions of the agreement were fair and reasonable, considering the interests of both employers and employees. The Commission considered the balance of the agreement and its compliance with the 'better off overall test', which ensures that employees are not worse off overall than under the applicable award.

The Commission found that the agreement was procedurally sound, with evidence of genuine and meaningful consultation and bargaining between the parties. In terms of substance, the agreement was deemed fair and reasonable, satisfying the better off overall test. The Commission highlighted that the agreement provided for wage increases and improved working conditions, which were beneficial to the employees. The Commission approved the agreement, noting that it met the requirements of the Fair Work Act and would contribute positively to the industrial relations environment.

The Fair Work Commission approved the Burton Industries Pty Ltd and the CFMEU (Victorian Construction and General Division) Subcontractors Coolroom Builder Enterprise Agreement 2020-2023. This decision ensures that the agreement will govern the employment terms and conditions for coolroom builders employed by Burton Industries for the specified period.

Burton Industries 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