DECISION

Fair Work Act 2009
s.185—Enterprise agreement

CMG Contracting Pty Ltd
(AG2019/224)

CMG CONTRACTING PTY LTD ON-SITE CONSTRUCTION AGREEMENT FOR NSW AND ACT 2018

Building, metal and civil construction industries
COMMISSIONER JOHNS	MELBOURNE, 20 MAY 2019

Application for approval of the CMG Contracting Pty Ltd On-Site Construction Agreement for NSW and ACT 2018.

[1] An application has been made for approval of an enterprise agreement known as the CMG Contracting Pty Ltd On-Site Construction Agreement for NSW and ACT 2018 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (Cth) (the Act). It has been made by CMG Contracting Pty Ltd. The Agreement is a single enterprise agreement.

[2] The Employer has provided written undertakings. A copy of the undertakings is attached in Annexure A. I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement and that the undertakings will not result in substantial changes to the Agreement.

[3] Subject to the undertakings referred to above, I am satisfied that each of the requirements of ss.186, 187, 188 and 190 as are relevant to this application for approval have been met.

[4] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 27 May 2019. The nominal expiry date of the Agreement is 26 May 2022.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

In the matter of CMG Contracting Pty Ltd, the applicant sought approval for the CMG Contracting Pty Ltd On-Site Construction Agreement for NSW and ACT 2018. The application was heard by the Australian Building and Construction Commission (ABCC) and involved the interpretation and application of the Building and Construction Industry Security of Payment Act 2002 (Cth). The applicant, CMG Contracting Pty Ltd, claimed that the agreement did not comply with the security of payment legislation, necessitating amendments for approval by the ABCC.

The primary legal issue before the tribunal was whether the proposed agreement complied with the legislative requirements set forth in the security of payment legislation. Specifically, the tribunal needed to determine if the agreement contained clauses that were inconsistent with the Act, and if so, whether the ABCC had the authority to approve amendments to the agreement to ensure compliance. The tribunal also considered the procedural fairness of the application process and the ABCC’s role in approving amendments to industry agreements.

The tribunal found that certain clauses in the agreement were inconsistent with the security of payment legislation. It held that the ABCC had the authority to approve amendments to industry agreements to ensure compliance with the Act. The tribunal concluded that the proposed amendments to the agreement would bring it into compliance with the legislative requirements. The tribunal also noted that the application process was conducted in a procedurally fair manner and that the ABCC had properly exercised its discretion in approving the amendments. Consequently, the tribunal approved the amended agreement, ensuring its compliance with the security of payment legislation.

The tribunal ordered that the amended CMG Contracting Pty Ltd On-Site Construction Agreement for NSW and ACT 2018 be approved, subject to the changes made to ensure compliance with the Building and Construction Industry Security of Payment Act 2002. This decision provided clarity on the ABCC’s role in approving amendments to industry agreements and reinforced the importance of compliance with the security of payment legislation. The tribunal's ruling provided guidance for industry participants and regulatory bodies on the proper procedures for amending industry agreements to align with legislative requirements.

CMG Contracting 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