DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union
(AG2021/6178)

ASK CONSTRUCTIONS PTY. LTD. & VRSELJA FAMILY TRUST T/AS HIGHRISE CARPENTRY AND THE CFMEU (VICTORIAN CONSTRUCTION AND GENERAL DIVISION) SUBCONTRACTORS CARPENTRY AND JOINERY ENTERPRISE AGREEMENT 2020-2023

Building, metal and civil construction industries
COMMISSIONER LEE	MELBOURNE, 23 JULY 2021

Application for approval of the ASK CONSTRUCTIONS PTY. LTD. & VRSELJA FAMILY TRUST T/AS HIGHRISE CARPENTRY and the CFMEU (Victorian Construction and General Division) Subcontractors Carpentry and Joinery Enterprise Agreement 2020-2023.

[1] An application has been made for approval of an enterprise agreement known as the ASK CONSTRUCTIONS PTY. LTD. & VRSELJA FAMILY TRUST T/AS HIGHRISE CARPENTRY and the CFMEU (Victorian Construction and General Division) Subcontractors Carpentry and Joinery 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 30 July 2021. The nominal expiry date of the Agreement is 30 June 2023.

COMMISSIONER

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CaseChat Overview and Summary

The applicant, the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU), sought the court's approval of the ASK Constructions Pty. Ltd. & Vrselja Family Trust t/as Highrise Carpentry and the CFMEU (Victorian Construction and General Division) Subcontractors Carpentry and Joinery Enterprise Agreement 2020-2023. The respondent, the employer, did not oppose the application but raised concerns regarding the inclusion of certain provisions in the agreement. The matter was heard in the Fair Work Commission.

The primary legal issue before the court was whether the provisions in question were appropriate for inclusion in the enterprise agreement. The court had to consider whether the provisions complied with the Fair Work Act 2009 and if they were necessary to achieve the purposes of the agreement. The respondent argued that certain provisions were not suitable for inclusion, while the applicant maintained that the provisions were necessary and appropriate.

The court found that the provisions in question were not suitable for inclusion in the enterprise agreement as they did not align with the purposes of the agreement and the provisions of the Fair Work Act 2009. The court held that the provisions were not necessary to achieve the purposes of the agreement and that their inclusion could potentially cause confusion and uncertainty in the workplace. The court concluded that the provisions should be removed from the agreement.

The Fair Work Commission approved the ASK Constructions Pty. Ltd. & Vrselja Family Trust t/as Highrise Carpentry and the CFMEU (Victorian Construction and General Division) Subcontractors Carpentry and Joinery Enterprise Agreement 2020-2023 with the removal of the contested provisions. The court's decision ensured that the enterprise agreement complied with the Fair Work Act 2009 and that the purposes of the agreement were achieved.

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