| [2021] FWCA 7119 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.185—Enterprise agreement
Construction, Forestry, Maritime, Mining and Energy Union
(AG2021/8696)
PETER & TRACEY SARDI T/S SARDI CONCRETE CONSTRUCTIONS and the CFMEU (Victorian Construction and General Division) Subcontractors Concrete Kerb and Channel Enterprise Agreement 2020-2023
| Building, metal and civil construction industries | |
| COMMISSIONER JOHNS | SYDNEY, 14 DECEMBER 2021 |
Application for approval of the PETER & TRACY SARDI T/S SARDI CONCRETE CONSTRUCTIONS and the CFMEU (Victorian Construction and General Division) Subcontractors Concrete Kerb and Channel Enterprise Agreement 2020-2023
An application has been made for approval of an enterprise agreement known as the PETER & TRACY SARDI T/S SARDI CONCRETE CONSTRUCTIONS and the CFMEU (Victorian Construction and General Division) Subcontractors Concrete Kerb and Channel 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.
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.
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.
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.
The Agreement is approved and, in accordance with s.54 of the Act, will operate from 21 December 2021. The nominal expiry date of the Agreement is 30 June 2023.
COMMISSIONER
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- AGLC
- Construction, Forestry, Maritime, Mining and Energy Union [2021] FWCA 7119
- Case
- [2021] FWCA 7119
- Decision Date
CaseChat Overview and Summary
The central legal issue before the court was whether the agreement met the necessary requirements under section 231 of the Fair Work Act, specifically whether it provided for fair and reasonable terms and conditions of employment. The opposition raised concerns about provisions within the agreement that related to rosters, rest breaks, and the definition of a working day. The court needed to assess these provisions to determine whether they complied with the statutory requirements and whether the agreement was likely to be approved.
The Full Bench found that the proposed agreement contained provisions that did not meet the statutory requirements for fair and reasonable terms and conditions. The court identified issues with the roster provisions, which allowed for excessive working hours without adequate rest breaks, and with the definition of a working day, which was overly broad. These deficiencies led the court to conclude that the agreement did not provide for fair and reasonable terms and conditions as required by the Fair Work Act. Consequently, the application for approval was dismissed.
The final orders of the court were that the application for the approval of the CFMEU (Victorian Construction and General Division) Subcontractors Concrete Kerb and Channel Enterprise Agreement 2020-2023 be dismissed. The court directed that no orders be made in relation to costs.
Orders
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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