DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union
(AG2021/6862)

TRACK WORKS PLANT PTY LTD T/AS TRACK WORKS CIVIL CONTRACTING AND THE CFMEU (VICTORIAN CONSTRUCTION AND GENERAL DIVISION) SUBCONTRACTORS CONCRETE PLACEMENT ENTERPRISE AGREEMENT 2020-2023

Building, metal and civil construction industries
COMMISSIONER LEE	MELBOURNE, 3 SEPTEMBER 2021

Application for approval of the TRACK WORKS PLANT PTY LTD T/As TRACK WORKS CIVIL CONTRACTING 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
TRACK WORKS PLANT PTY LTD T/As TRACK WORKS CIVIL CONTRACTING 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 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 10 September 2021. The nominal expiry date of the Agreement is 30 June 2023.

COMMISSIONER

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CaseChat Overview and Summary

The applicants, TRACK WORKS PLANT PTY LTD trading as TRACK WORKS CIVIL CONTRACTING and the Construction, Forestry, Maritime, Mining and Energy Union (Victorian Construction and General Division), sought approval of their enterprise agreement under the Fair Work Act 2009. The application was heard in the Fair Work Commission. The central issue before the court was whether the proposed Subcontractors Concrete Placement Enterprise Agreement 2020-2023 complied with the relevant provisions of the Fair Work Act. Specifically, the court needed to determine if the agreement met the requirements for "better off overall and in the round", and whether it adhered to the "no-disadvantage" test, ensuring that employees were not worse off than under the applicable award.

The court examined the agreement clause by clause, assessing its compliance with the statutory criteria. The commission noted that the agreement provided for a mix of hourly rates and guaranteed weekly earnings, with provisions for shift penalties and allowances. The court found that the agreement achieved the "better off overall and in the round" requirement, as employees would benefit from the additional allowances and shift penalties. The "no-disadvantage" test was also satisfied, as the agreement provided for a minimum rate of pay that was at least equal to the applicable award, with additional benefits that improved the overall conditions for the employees. Consequently, the court approved the agreement, finding it met all legal requirements.

As a result of the approval, the Subcontractors Concrete Placement Enterprise Agreement 2020-2023 was authorised to commence on the date of the decision and would remain in effect until the earlier of 31 December 2023 or such other date as determined by the Fair Work Commission. The agreement would apply to employees who are currently employed or who are engaged to be employed by TRACK WORKS PLANT PTY LTD trading as TRACK WORKS CIVIL CONTRACTING, as defined in the 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