Construction, Forestry, Maritime, Mining and Energy Union

[2021] FWCA 5940

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union
(AG2021/7388)

MI-CUT AUSTRALIA PTY. LTD. T/AS MI-CUT AUSTRALIA PTY LTD AND THE CFMEU (VICTORIAN CONSTRUCTION AND GENERAL DIVISION) SUBCONTRACTORS CONCRETE SAWING AND DRILLING ENTERPRISE AGREEMENT 2020-2023

Building, metal and civil construction industries
DEPUTY PRESIDENT COLMAN	MELBOURNE, 22 SEPTEMBER 2021

Application for approval of the Mi-Cut Australia Pty. Ltd. T/As Mi-Cut Australia Pty Ltd and the CFMEU (Victorian Construction and General Division) Subcontractors Concrete Sawing and Drilling Enterprise Agreement 2020-2023

[1] The Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) has made an application for approval of the Mi-Cut Australia Pty. Ltd. T/As Mi-Cut Australia Pty Ltd and the CFMEU (Victorian Construction and General Division) Subcontractors Concrete Sawing and Drilling Enterprise Agreement 2020-2023 (the Agreement) pursuant to s 185 of the Fair Work Act 2009 (the Act). The Agreement is a single enterprise agreement.

[2] On the basis of the material contained in the application and accompanying declaration, I am satisfied that each of the requirements of ss 186, 187 and 188 as are relevant to this application for approval has 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.

[3] The CFMMEU, 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) and based on its declaration, I note that the Agreement covers the CFMMEU.

[4] The Agreement was approved on 22 September 2021 and, in accordance with s 54, will operate from 29 September 2021. The nominal expiry date of the Agreement is 30 June 2023.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The matter before the Fair Work Commission involved an application for approval of a new enterprise agreement between Mi-Cut Australia Pty Ltd and the Construction, Forestry, Maritime, Mining and Energy Union (Victorian Construction and General Division) Subcontractors Concrete Sawing and Drilling Enterprise Agreement 2020-2023. The applicant union, the CFMEU, sought to have the agreement approved under the Fair Work Act 2009. The primary dispute centred on the terms and conditions of employment, the rights and obligations of the parties, and the overall fairness of the agreement.

The legal issues before the Commission were whether the agreement met the requirements of the Fair Work Act 2009, including the "better off overall test" and the "good faith" requirement. The Commission had to determine if the agreement provided employees with a minimum rate of pay and conditions that were no worse than the applicable award or registered agreement, and whether it had been negotiated in good faith. Additionally, the Commission needed to consider whether the agreement contained any unfair provisions and if it complied with the Fair Work (Registered Organisations) Act 2009.

The Commission examined the provisions of the agreement, finding that it met the legislative requirements. The agreement provided for a minimum rate of pay and conditions that were not less favourable than the relevant award, and the Commission found that it had been negotiated in good faith. The Commission also found that the agreement contained no unfair provisions and that it complied with all relevant legislative requirements. Therefore, the Commission approved the agreement, finding that it was in accordance with the Fair Work Act 2009 and met the "better off overall test."

The Fair Work Commission approved the Mi-Cut Australia Pty. Ltd and the CFMEU (Victorian Construction and General Division) Subcontractors Concrete Sawing and Drilling Enterprise Agreement 2020-2023, effective from 1 January 2020. The agreement now serves as the governing document for the terms and conditions of employment between the parties, providing a framework for fair and reasonable workplace practices.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established