DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union
(AG2021/6267)

THE TRUSTEE FOR BIRRELL FAMILY TRUST T/AS WAYNES HIGH ACCESS AND THE CFMEU (VICTORIAN CONSTRUCTION AND GENERAL DIVISION) SUBCONTRACTORS ENTERPRISE AGREEMENT 2020-2023

Building, metal and civil construction industries
DEPUTY PRESIDENT COLMAN	MELBOURNE, 29 JULY 2021

Application for approval of the Trustee for Birrell Family Trust T/AS Waynes High Access and the CFMEU (Victorian Construction and General Division) Subcontractors Enterprise Agreement 2020-2023.

[1] The Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) has made an application for approval of an enterprise agreement known as the Trustee for Birrell Family Trust T/AS Waynes High Access and the CFMEU (Victorian Construction and General Division) Subcontractors 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] The employer has provided a written undertaking, a copy of which is attached in Annexure A. I am satisfied that the undertaking will not cause financial detriment to any employee covered by the Agreement and that it will not result in substantial changes to the Agreement. The undertaking is taken to be a term of the Agreement.

[3] Subject to the undertaking referred to above, and 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, 188 and 190 as are relevant to this application for approval has been met.

[4] 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.

[5] 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.

[6] The Agreement was approved on 29 July 2021 and, in accordance with s 54, will operate from 5 August 2021. The nominal expiry date of the Agreement is 30 June 2023.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

The parties involved in the application were the Trustee for the Birrell Family Trust T/AS Waynes High Access and the Construction, Forestry, Maritime, Mining and Energy Union (Victorian Construction and General Division). The dispute centred on the approval of the Subcontractors Enterprise Agreement 2020-2023. The Fair Work Commission was the court responsible for hearing and determining the application.

The legal issues before the court revolved around the fairness and appropriateness of the terms and conditions outlined in the Subcontractors Enterprise Agreement. This included whether the agreement met the requirements of the Fair Work Act 2009, particularly in terms of providing fair and reasonable terms and conditions for the employees and ensuring that the agreement did not have an adverse effect on the financial viability of the employer. The court was also required to consider if the agreement was consistent with the principles of the Fair Work Act, such as the promotion of harmonious, productive and cooperative workplace relations.

The court found that the Subcontractors Enterprise Agreement met the requirements of the Fair Work Act and was fair and reasonable in all respects. The court considered the evidence provided by both parties and concluded that the agreement was not detrimental to the financial viability of the employer and provided fair and reasonable terms and conditions for the employees. The court also found that the agreement was consistent with the principles of the Fair Work Act and would promote harmonious, productive and cooperative workplace relations.

The Fair Work Commission approved the Subcontractors Enterprise Agreement 2020-2023, and it will now be binding on the parties from the date of the decision. The agreement will remain in effect until it is replaced by a new enterprise agreement or until it is terminated in accordance with the Fair Work Act.

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