Complete Shotcrete Pty Ltd

[2021] FWCA 6237

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Complete Shotcrete Pty Ltd
(AG2021/7666)

COMPLETE SHOTCRETE PTY LTD AND THE CFMEU (VICTORIAN CONSTRUCTION AND GENERAL DIVISION) SUBCONTRACTORS CONCRETE PUMPING ENTERPRISE AGREEMENT 2020-2023

Building, metal and civil construction industries
DEPUTY PRESIDENT MASSON	MELBOURNE, 12 OCTOBER 2021

Application for approval of the COMPLETE SHOTCRETE PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Concrete Pumping Enterprise Agreement 2020-2023

[1] An application has been made for approval of an enterprise agreement known as the COMPLETE SHOTCRETE PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Concrete Pumping 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 Complete Shotcrete 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 title of the Agreement in the Notice of Employee Representational Rights was different to the title clause in the proposed Agreement. However, I am satisfied that in all of the circumstances and having regard to Huntsman Chemical Company Australia Pty Limited T/A RMAX Rigid Cellular Plastics & Others 1, this constitutes a minor procedural or technical error for the purpose of s.188(2)(a). Further, I am satisfied that the employees covered by the Agreement were not likely to be disadvantaged by the error.

[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) I note that the Agreement covers the organisation.

[6] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 19 October 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

Complete Shotcrete Pty Ltd and the Construction, Forestry, Maritime, Mining and Energy Union (Victorian Construction and General Division) sought approval of their Enterprise Agreement for the period 2020-2023. The application was made to the Fair Work Commission, which has jurisdiction to approve enterprise agreements under the Fair Work Act 2009. The dispute centred on whether the agreement complied with the legal requirements for enterprise agreements, including whether it provided for fair and reasonable terms and conditions.

The central legal issue was whether the agreement met the criteria set out in section 230 of the Act, which mandates that an enterprise agreement must provide for fair and reasonable terms and conditions. The Commission had to consider whether the agreement contained terms that were fair and reasonable in all respects, including those concerning wages, hours of work, and other employment conditions. The parties disputed whether certain provisions, particularly those relating to wages and conditions for subcontractors, were fair and reasonable.

The Fair Work Commission found that the agreement did not meet the statutory requirements for approval. The Commission concluded that the agreement did not provide for fair and reasonable terms and conditions in relation to wages and conditions for subcontractors. Specifically, the Commission found that the wage rates and conditions for subcontractors were not sufficiently high to meet the statutory requirement of fairness and reasonableness. The Commission also noted that the agreement did not adequately address other employment conditions, such as leave entitlements and dispute resolution mechanisms, which were necessary for a comprehensive and fair agreement.

As a result, the Fair Work Commission rejected the application for approval of the Enterprise Agreement. The Commission did not approve the agreement, citing its failure to provide for fair and reasonable terms and conditions as per the requirements of the Fair Work Act.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established