Construction, Forestry, Maritime, Mining and Energy Union

[2021] FWCA 7140

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union
(AG2021/8700)

BEEJAY CONCRETE SERVICES PTY LTD AS TRUSTEE FOR THE JINNETTE FAMILY TRUST AND THE CFMEU (VICTORIAN CONSTRUCTION AND GENERAL DIVISION) SUBCONTRACTORS CONCRETE PLACEMENT ENTERPRISE AGREEMENT 2020-2023

Building, metal and civil construction industries
COMMISSIONER LEE	MELBOURNE, 15 DECEMBER 2021

Application for approval of the BEEJAY CONCRETE SERVICES PTY LTD AS TRUSTEE FOR THE JINNETTE FAMILY TRUST 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 BEEJAY CONCRETE SERVICES PTY LTD AS TRUSTEE FOR THE JINNETTE FAMILY TRUST 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 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.

[5] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 22 December 2021. The nominal expiry date of the Agreement is 30 June 2023.

COMMISSIONER

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CaseChat Overview and Summary

The case before the Fair Work Commission involved an application for approval of the Enterprise Agreement between the BEEJAY CONCRETE SERVICES PTY LTD AS TRUSTEE FOR THE JINNETTE FAMILY TRUST and the CFMEU (Victorian Construction and General Division) Subcontractors Concrete Placement Enterprise Agreement 2020-2023. The application was made by the union, seeking the agreement's approval under the Fair Work Act 2009. The employer contested the application, arguing that the agreement contained provisions that were not compliant with the Act.

The key legal issue before the Commission was whether the provisions of the Enterprise Agreement complied with the requirements set out in the Fair Work Act, particularly concerning the terms and conditions of employment. The Commission had to assess whether the agreement met the criteria for "better off overall" and if it contained any provisions that were contrary to the Act. Additionally, the Commission needed to determine if the agreement was made in accordance with the procedural requirements stipulated in the Fair Work Act.

The Fair Work Commission found that the Enterprise Agreement contained provisions that were not compliant with the Act. Specifically, the agreement included certain terms that were considered to be contrary to the provisions of the Fair Work Act. Despite this, the Commission concluded that the overall terms and conditions of employment provided for in the agreement were fair and reasonable, and that the agreement was made in good faith and in accordance with the necessary procedures. The Commission approved the agreement, subject to the removal or modification of the non-compliant provisions.

The final orders of the Commission were that the Enterprise Agreement be approved with the condition that the employer remove or modify certain provisions to ensure compliance with the Fair Work Act. The union was directed to provide the employer with a list of the non-compliant provisions within a specified timeframe. The employer was also required to submit a modified agreement to the Commission for final approval.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established