Construction, Forestry, Maritime, Mining and Energy Union Summary

[2021] FWCA 6766

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union
(AG2021/8276)

A & S SOLID PUMPING 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, 19 NOVEMBER 2021

Application for approval of the A & S SOLID PUMPING 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 A & S SOLID PUMPING 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 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 26 November 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

The matter before the Fair Work Commission was an application for the approval of a proposed enterprise agreement between A & S Solid Pumping Pty Ltd and the Construction, Forestry, Maritime, Mining and Energy Union (Victorian Construction and General Division) concerning concrete pumping subcontractors. The applicant union sought approval for the Enterprise Agreement 2020-2023, which outlined the terms and conditions of employment for its members working as concrete pumping subcontractors for the employer. The Commission was tasked with determining whether the proposed agreement met the necessary legal requirements for approval under the Fair Work Act 2009.

The central legal issue before the Commission was whether the proposed enterprise agreement complied with the statutory requirements under the Fair Work Act, including provisions related to minimum entitlements, the avoidance of undue hardship, and the protection of vulnerable workers. The Commission had to ensure that the agreement did not adversely affect employees' existing terms and conditions, did not allow for the payment of less than the applicable minimum rate of pay, and did not prevent employees from exercising their rights under the Fair Work Act. Furthermore, the Commission needed to confirm that the agreement had been fairly and genuinely negotiated between the parties and was in the best interests of the employees covered by the agreement.

After considering the submissions from both parties and the relevant legal framework, the Commission concluded that the proposed enterprise agreement met all the necessary statutory requirements for approval. The agreement provided for minimum entitlements that were not less favourable than the applicable awards and included provisions for annual leave, personal/carer's leave, and public holidays. The Commission found that the agreement did not cause undue hardship to the employer and did not prevent employees from exercising their rights under the Fair Work Act. Additionally, the Commission was satisfied that the agreement had been fairly and genuinely negotiated between the parties and was in the best interests of the employees covered by the agreement.

The Fair Work Commission approved the proposed Enterprise Agreement 2020-2023 between A & S Solid Pumping Pty Ltd and the Construction, Forestry, Maritime, Mining and Energy Union (Victorian Construction and General Division) concerning concrete pumping subcontractors. The approved agreement will now govern the terms and conditions of employment for the union members working as concrete pumping subcontractors for the employer for the period 2020-2023.

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