Construction, Forestry, Maritime, Mining and Energy Union

[2021] FWCA 6746

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union
(AG2021/8260)

CORCRETE 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, 18 NOVEMBER 2021

Application for approval of the CORCRETE 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 CORCRETE 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 25 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 case involves an application by Concrete Pty Ltd and the Construction, Forestry, Maritime, Mining and Energy Union (Victorian Construction and General Division) for approval of the Subcontractors Concrete Placement Enterprise Agreement 2020-2023. The matter was heard and determined by the Fair Work Commission. The primary dispute centred around whether the proposed enterprise agreement met the statutory requirements under the Fair Work Act 2009, specifically addressing the agreement's compliance with minimum entitlements, procedural fairness, and whether it appropriately balances the interests of both employers and employees.

The court was required to consider several legal issues, including whether the agreement provided for minimum terms and conditions of employment as stipulated in the Act, if the agreement was made in a procedurally fair manner, and whether the agreement appropriately balances the interests of both parties. Additionally, the court needed to evaluate if the agreement adhered to the Fair Work Act's provisions concerning the avoidance of industrial action, as well as whether the agreement was genuinely negotiated and not imposed.

In its decision, the Fair Work Commission found that the proposed enterprise agreement complied with the statutory requirements. The court concluded that the agreement provided for all minimum entitlements, was made in a procedurally fair manner, and appropriately balanced the interests of both parties. The Commission determined that the agreement did not impose any terms and conditions that were less favourable than the applicable minimum standards, and that the negotiation process was conducted in good faith. Therefore, the Commission approved the Subcontractors Concrete Placement Enterprise Agreement 2020-2023.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established