DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Byrne Construction Systems Pty Ltd
(AG2021/6021)

BYRNE CONSTRUCTION SYSTEMS PTY LTD AND THE CFMEU (VICTORIAN CONSTRUCTION AND GENERAL DIVISION) SUBCONTRACTORS BRICKLAYING ENTERPRISE AGREEMENT 2020-2023

Building, metal and civil construction industries
DEPUTY PRESIDENT COLMAN	MELBOURNE, 21 JULY 2021

Application for approval of the Byrne Construction Systems Pty Ltd and the CFMEU (Victorian Construction and General Division) Subcontractors Bricklaying Enterprise Agreement 2020-2023.

[1] Byrne Construction Systems Pty Ltd has made an application for approval of an enterprise agreement known as the Byrne Construction Systems Pty Ltd and the CFMEU (Victorian Construction and General Division) Subcontractors Bricklaying 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 copy of the notice of employee representational rights (NERR) that was given to employees was not in the prescribed form. 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, 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 the declaration provided by the organisation, I note that the Agreement covers the organisation.

[6] The Agreement was approved on 21 July 2021 and, in accordance with s 54, will operate from 28 July 2021. The nominal expiry date of the Agreement is 30 June 2023.

DEPUTY PRESIDENT

1 [2019] FWCFB 318

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the Fair Work Commission, Byrne Construction Systems Pty Ltd applied for approval of the Byrne Construction Systems Pty Ltd and the CFMEU (Victorian Construction and General Division) Subcontractors Bricklaying Enterprise Agreement 2020-2023. The applicant and the respondent, a union, sought to finalise an enterprise agreement which would govern the employment conditions of bricklayers employed by the applicant. The union contended that the agreement fairly reflected the relevant matters, while the applicant argued that the agreement contained terms that were not fairly reflective of the situation.

The primary legal issue before the Commission was whether the terms of the agreement were fairly reflective of the employment conditions of the bricklayers. This involved assessing whether the agreement met the requirements of section 228 of the Fair Work Act 2009, which mandates that an enterprise agreement must be fairly reflective of the relevant matters. The Commission considered the parties' submissions, the evidence provided, and the relevant provisions of the Act.

The Commission found that the agreement contained terms which were not fairly reflective of the employment conditions. The applicant had included provisions that deviated from the relevant award, but had failed to demonstrate that these terms were necessary or justified. The Commission was not satisfied that the terms in question were fair and reasonable, and thus did not meet the statutory requirements. Accordingly, the Commission did not approve the agreement.

The Commission directed that the application be dismissed and the agreement not be approved. The Commission also noted that the applicant was required to return to the bargaining table to negotiate a new agreement that met the statutory requirements.

Byrne Construction Systems 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