Construction, Forestry, Maritime, Mining and Energy Union

[2021] FWCA 6019

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union
(AG2021/7436)

BALDACON CONCRETE PUMPING PTY LTD AND THE CFMEU (VICTORIAN CONSTRUCTION AND GENERAL DIVISION) SUBCONTRACTORS CONCRETE PUMPING ENTERPRISE AGREEMENT 2020-2023

Building, metal and civil construction industries
COMMISSIONER JOHNS	SYDNEY, 28 SEPTEMBER 2021

Application for approval of the BALDACON CONCRETE 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 BALDACON CONCRETE 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 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 5 October 2021. The nominal expiry date of the Agreement is 30 June 2023.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The case involves an application by the Baldacon Concrete Pumping Pty Ltd and the Construction, Forestry, Maritime, Mining and Energy Union (Victorian Construction and General Division) to have their Enterprise Agreement approved by the Fair Work Commission. The agreement in question pertains to the employment conditions of subcontractors within the concrete pumping industry for the period 2020 to 2023. The Fair Work Commission was tasked with determining whether the proposed agreement met the statutory criteria for approval, including fairness, compliance with the Fair Work Act 2009, and whether it was negotiated in good faith.

The legal issues before the court encompassed several critical elements. These included verifying that the agreement was genuinely negotiated between the employer and the union, and that it was not imposed by one party over the other. Additionally, the court had to ascertain whether the agreement provided fair and reasonable terms and conditions of employment, and if it complied with all relevant statutory provisions. The court also needed to consider if the agreement was in the best interest of the employees and if it allowed for proper representation and protection of their rights.

The Fair Work Commission found that the Enterprise Agreement was genuinely negotiated between the employer and the union. The court was satisfied that the agreement provided fair and reasonable terms and conditions of employment, was not imposed, and complied with all relevant statutory requirements. The Commission concluded that the agreement was in the best interests of the employees and afforded them proper representation and protection of their rights. Consequently, the Fair Work Commission approved the Baldacon Concrete Pumping Pty Ltd and the CFMEU (Victorian Construction and General Division) Subcontractors Concrete Pumping Enterprise Agreement 2020-2023.

The Fair Work Commission issued its decision approving the enterprise agreement. The approval was based on the findings that the agreement was genuinely negotiated, provided fair and reasonable terms, and complied with all statutory requirements. The court also confirmed that the agreement was in the best interests of the employees and provided adequate representation and protection of their rights. This decision ensures that the terms of the agreement will be binding upon the parties and will operate for the specified period.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established