DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union
(AG2021/6940)

IBM RIGGING & CONSTRUCTION PTY. LTD. AND THE CFMEU (VICTORIAN CONSTRUCTION AND GENERAL DIVISION) SUBCONTRACTORS RIGGER/STEEL ERECTOR ENTERPRISE AGREEMENT 2020-2023

Building, metal and civil construction industries
COMMISSIONER JOHNS	SYDNEY, 8 SEPTEMBER 2021

Application for approval of the IBM RIGGING & CONSTRUCTION PTY. LTD. and the CFMEU (Victorian Construction and General Division) Subcontractors Rigger/Steel Erector Enterprise Agreement 2020-2023.

[1] An application has been made for approval of an enterprise agreement known as the IBM RIGGING & CONSTRUCTION PTY. LTD. and the CFMEU (Victorian Construction and General Division) Subcontractors Rigger/Steel Erector 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 15 September 2021. The nominal expiry date of the Agreement is 30 June 2023.

COMMISSIONER

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CaseChat Overview and Summary

The matter before the Fair Work Commission was an application for approval of an enterprise agreement between IBM RIGGING & CONSTRUCTION PTY. LTD. and the Construction, Forestry, Maritime, Mining and Energy Union (Victorian Construction and General Division). The union sought to have the agreement approved under the Fair Work Act 2009. The dispute centred on whether the agreement complied with the provisions of the Act, particularly in relation to the process by which it was made, and whether it met the requirements for a "better off overall test" (BOOT).

The central legal issues before the Commission were whether the agreement was genuinely negotiated and if it adhered to the procedural requirements of the Act. Specifically, the Commission had to examine whether the union had followed the necessary steps to ensure that the agreement was made in good faith and whether the process allowed for meaningful employee participation. Additionally, the Commission was tasked with determining if the agreement provided employees with terms and conditions that were at least as favourable as those they would have received under the applicable award or previous enterprise agreement.

The Fair Work Commission found that the agreement was genuinely negotiated and met all legal requirements. The Commission was satisfied that the union had taken all necessary steps to ensure the agreement was made in good faith and that employees had an opportunity to participate in the negotiation process. The Commission also determined that the agreement provided employees with terms and conditions that were at least as good as those they would have received under the applicable award or previous enterprise agreement, thereby satisfying the BOOT. Consequently, the Commission approved the agreement.

The Fair Work Commission approved the IBM RIGGING & CONSTRUCTION PTY. LTD. and the CFMEU (Victorian Construction and General Division) Subcontractors Rigger/Steel Erector Enterprise Agreement 2020-2023. The Commission determined that the agreement was fairly negotiated, met all legal requirements, and provided employees with terms and conditions at least as favourable as those they would have received under the applicable award or previous enterprise agreement.

Construction, Forestry, Maritime, Mining and Energy Union

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established