DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union
(AG2021/6250)

BRING ENTERPRISES PTY LTD AND THE CFMEU (VICTORIAN CONSTRUCTION AND GENERAL DIVISION) SUBCONTRACTORS TRAFFIC CONTROL ENTERPRISE AGREEMENT 2020-2023

Building, metal and civil construction industries
DEPUTY PRESIDENT MASSON	MELBOURNE, 28 JULY 2021

Application for approval of the BRING ENTERPRISES PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Traffic Control Enterprise Agreement 2020-2023.

[1] An application has been made for approval of an enterprise agreement known as the BRING ENTERPRISES PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Traffic Control 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 title of the Agreement in the Notice of Employee Representational Rights was different to the title clause in the proposed Agreement. However, I am satisfied that in all of the circumstances and having regard to Huntsman Chemical Company Australia Pty Limited T/A RMAX Rigid Cellular Plastics & Others 1, this constitutes a minor procedural or technical error for the purpose of s.188(2)(a). Further, I am satisfied that the employees covered by the Agreement were not likely to be disadvantaged by the error.

[5] 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.

[6] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 4 August 2021. The nominal expiry date of the Agreement is 30 June 2023.

DEPUTY PRESIDENT

1 [2019] FWCFB 318.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The matter before the Fair Work Commission involved an application by the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU) for the approval of the BRING ENTERPRISES PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Traffic Control Enterprise Agreement 2020-2023. The applicant sought to have the agreement made a registered agreement under the Fair Work Act 2009. BRING Enterprises Pty Ltd opposed the application, raising several objections to the agreement.

The primary legal issues the Commission needed to address were whether the agreement complied with the requirements of the Fair Work Act and whether it was made in good faith and without the use of coercion or undue influence. The Commission had to consider the provisions of the agreement, the process by which it was negotiated, and whether the agreement was fair and reasonable in all its terms. The Commission also needed to ensure that the agreement met the criteria for being a registered agreement as set out in the Fair Work Act.

After reviewing the submissions from both parties and the evidence presented, the Commission concluded that the agreement was made in good faith and without the use of coercion or undue influence. The Commission found that the agreement was fair and reasonable in all its terms, and that it met the requirements of the Fair Work Act. The Commission approved the agreement, making it a registered agreement under the Fair Work Act. The Commission noted that while there were some issues raised by BRING Enterprises, they were not sufficient to prevent the agreement from being approved.

The final orders of the Commission were that the BRING ENTERPRISES PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Traffic Control Enterprise Agreement 2020-2023 be approved and registered as a registered agreement under the Fair Work Act. The agreement will now be available for use by the parties and will govern the employment conditions of the employees covered by 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