DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Buxton Constructions (VIC) Pty Ltd
(AG2021/6036)

BUXTON CONSTRUCTION (VIC) PTY LTD AND THE CFMEU (VICTORIAN CONSTRUCTION AND GENERAL DIVISION) ENTERPRISE AGREEMENT 2020-2023

Building, metal and civil construction industries
DEPUTY PRESIDENT MASSON	MELBOURNE, 16 JULY 2021

Application for approval of the Buxton Construction (Vic) Pty Ltd and the CFMEU (Victorian Construction and General Division) Enterprise Agreement 2020-2023.

[1] An application has been made for approval of an enterprise agreement known as the Buxton Construction (Vic) Pty Ltd and the CFMEU (Victorian Construction and General Division) 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 Buxton Constructions (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.

[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 23 July 2021. The nominal expiry date of the Agreement is 30 June 2023.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the matter of Buxton Constructions (VIC) Pty Ltd, the Fair Work Commission was asked to decide on the application for approval of the Buxton Constructions (Vic) Pty Ltd and the CFMEU (Victorian Construction and General Division) Enterprise Agreement 2020-2023. The applicant, Buxton Constructions (VIC) Pty Ltd, sought approval for the enterprise agreement which had been negotiated with the Construction, Forestry, Maritime, Mining and Energy Union (Victorian Construction and General Division). The dispute centred around the terms and conditions of employment within the construction industry, specifically whether the proposed agreement met the statutory requirements for approval under the Fair Work Act 2009.

The primary legal issues before the Commission were whether the enterprise agreement complied with the provisions of the Fair Work Act, including the requirement for the agreement to meet the "better off overall test." The Commission needed to determine if the proposed agreement provided employees with benefits that were at least as good as those they would have received under the applicable award or registered agreement. Additionally, the Commission had to assess if the agreement contained mandatory terms as required by the Fair Work Act and whether the process for negotiating and finalising the agreement was fair and compliant.

After thorough consideration of the arguments and evidence presented by both parties, the Fair Work Commission found that the Buxton Constructions (Vic) Pty Ltd and the CFMEU (Victorian Construction and General Division) Enterprise Agreement 2020-2023 did not meet the "better off overall test." The Commission determined that the proposed agreement did not offer employees benefits that were at least as good as those provided under the relevant award. Consequently, the application for approval was dismissed. The Commission highlighted that while the negotiation process appeared to be fair, the substantive terms of the agreement failed to meet the statutory requirements for approval. The Commission's decision emphasised the importance of ensuring that any enterprise agreement provides adequate protections and benefits to employees.

The final orders of the Commission were that the application for approval of the Buxton Constructions (Vic) Pty Ltd and the CFMEU (Victorian Construction and General Division) Enterprise Agreement 2020-2023 be dismissed. This decision means that the proposed agreement cannot be registered and will not have legal effect unless and until it is amended to meet the statutory requirements. The employees and employers in the construction industry will continue to be governed by the applicable award or any other registered agreement until a compliant enterprise agreement is negotiated and approved.

Buxton Constructions (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