Construction, Forestry, Maritime, Mining and Energy Union Summary

[2021] FWCA 7352

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union
(AG2021/9182)

YARRA CONTRACTING PTY LTD AND THE CFMEU (VICTORIAN CONSTRUCTION AND GENERAL DIVISION) SUBCONTRACTORS CONCRETE PLACEMENT ENTERPRISE AGREEMENT 2020-2023

Building, metal and civil construction industries
DEPUTY PRESIDENT MASSON	MELBOURNE, 31 DECEMBER 2021

Application for approval of the YARRA CONTRACTING PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Concrete Placement Enterprise Agreement 2020-2023

[1] An application has been made for approval of an enterprise agreement known as the YARRA CONTRACTING PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Concrete Placement 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 the Construction, Forestry, Maritime, Mining and Energy Union. 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 7 January 2022. 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

The matter before the Fair Work Commission was an application for approval of the YARRA CONTRACTING PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Concrete Placement Enterprise Agreement 2020-2023. The applicant, the Construction, Forestry, Maritime, Mining and Energy Union, sought to have the enterprise agreement approved under the Fair Work Act 2009. The dispute centred around whether the agreement met the statutory requirements for approval, including whether it provided for minimum terms and conditions, and whether it had been fairly and properly made.

The key legal issues before the commission were whether the enterprise agreement contained the required minimum terms and conditions as outlined in the Fair Work Act, and whether the process by which the agreement was made was fair and proper. Specifically, the commission needed to determine if the agreement provided for adequate minimum rates of pay, leave entitlements, and other employment conditions. Additionally, the commission considered whether the agreement had been made without the influence of undue pressure or coercion, and whether it had been appropriately negotiated and agreed upon by both parties.

In its decision, the commission found that the enterprise agreement did provide for the required minimum terms and conditions, including minimum rates of pay, leave entitlements, and other employment protections. The commission also concluded that the agreement had been fairly and properly made, noting the evidence provided by both parties and the absence of any undue influence or coercion in the negotiation process. The commission was satisfied that the agreement was made in good faith and that the process complied with the requirements of the Fair Work Act.

Accordingly, the commission approved the YARRA CONTRACTING PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Concrete Placement Enterprise Agreement 2020-2023. The agreement will now apply to the relevant employees and employers, providing them with the agreed terms and conditions of employment.

Construction, Forestry, Maritime, Mining and Energy Union

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established