Construction, Forestry, Maritime, Mining and Energy Union

[2021] FWCA 7235

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union
(AG2021/8838)

GROUND ZERO SERVICE LOCATING PTY LTD AND THE CFMEU (VICTORIAN CONSTRUCTION AND GENERAL DIVISION) SUBCONTRACTORS GROUND SERVICE LOCATING ENTERPRISE AGREEMENT 2020-2023

Building, metal and civil construction industries
DEPUTY PRESIDENT MASSON	MELBOURNE, 21 DECEMBER 2021

Application for approval of the GROUND ZERO SERVICE LOCATING PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Ground Service Locating Enterprise Agreement 2020-2023

[1] An application has been made for approval of an enterprise agreement known as the GROUND ZERO SERVICE LOCATING PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Ground Service Locating 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 28 December 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

In the matter of an application for approval of the Ground Zero Service Locating Pty Ltd and the Construction, Forestry, Maritime, Mining and Energy Union (Victorian Construction and General Division) Subcontractors Ground Service Locating Enterprise Agreement 2020-2023, the Fair Work Commission was presented with a dispute concerning the terms of the proposed enterprise agreement. The applicant, Ground Zero Service Locating Pty Ltd, sought approval of the agreement from the Commission, while the Construction, Forestry, Maritime, Mining and Energy Union (Victorian Construction and General Division) Subcontractors Ground Service Locating Enterprise Agreement 2020-2023 was put forward as the proposed agreement. The primary issue before the Commission was whether the proposed agreement complied with the requirements of the Fair Work Act 2009 and if it was in the best interests of the employees covered by the agreement.

The Fair Work Commission examined the provisions of the proposed agreement to determine if they met the legal standards set out in the Act. The Commission assessed whether the agreement was free from any provisions that would undermine the rights of employees, such as those relating to minimum wages, penalties, and other entitlements. Additionally, the Commission considered whether the agreement was genuinely negotiated between the parties and if it provided fair and reasonable terms for the employees. After careful consideration of the evidence and arguments presented by both parties, the Commission determined that the proposed agreement complied with the requirements of the Act and was in the best interests of the employees.

Consequently, the Fair Work Commission approved the Ground Zero Service Locating Pty Ltd and the Construction, Forestry, Maritime, Mining and Energy Union (Victorian Construction and General Division) Subcontractors Ground Service Locating Enterprise Agreement 2020-2023. The decision was based on the Commission's finding that the agreement was free from any provisions that would undermine the rights of employees and that it provided fair and reasonable terms for the employees covered by the agreement. As a result, the agreement was approved and will be in effect for the duration specified in the agreement.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established