DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union
(AG2021/6114)

LANDSCAPE PLUS COMMERCIAL PTY LTD AND THE CFMEU (VICTORIAN CONSTRUCTION AND GENERAL DIVISION) SUBCONTRACTORS LANDSCAPE CONSTRUCTION ENTERPRISE AGREEMENT 2020-2023

Building, metal and civil construction industries
DEPUTY PRESIDENT MASSON	MELBOURNE, 21 JULY 2021

Application for approval of the LANDSCAPE PLUS COMMERCIAL PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Landscape Construction Enterprise Agreement 2020-2023.

[1] An application has been made for approval of an enterprise agreement known as the LANDSCAPE PLUS COMMERCIAL PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Landscape Construction 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 28 July 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

In the Fair Work Commission, the Construction, Forestry, Maritime, Mining and Energy Union, as a registered organisation, applied for approval of the Landscape Plus Commercial Pty Ltd and the CFMEU (Victorian Construction and General Division) Subcontractors Landscape Construction Enterprise Agreement 2020-2023. The dispute concerned the terms and conditions of employment for landscape construction workers employed by subcontractors within the landscape construction industry in Victoria. The Commission was required to determine whether the proposed agreement met the criteria for approval under the Fair Work Act 2009. Specifically, the Commission had to assess whether the agreement provided for a safety net of minimum terms and conditions, ensured fair and reasonable terms and conditions, and provided for proper procedures for the resolution of disputes.

The legal issues the Commission was required to decide included whether the proposed agreement provided for a safety net of minimum terms and conditions that were no less favourable than the relevant national workplace determination, whether the agreement provided for fair and reasonable terms and conditions, and whether the agreement provided for proper procedures for the resolution of disputes. The Commission also had to consider whether the agreement was in the public interest and whether it complied with the requirements of the Fair Work Act 2009.

After considering the evidence and submissions from both parties, the Commission found that the proposed agreement met the criteria for approval. The Commission noted that the agreement provided for a safety net of minimum terms and conditions that were no less favourable than the relevant national workplace determination and provided for fair and reasonable terms and conditions. The Commission also found that the agreement provided for proper procedures for the resolution of disputes and was in the public interest. The Commission approved the proposed agreement, which will now apply to landscape construction workers employed by subcontractors in Victoria from 1 July 2020 to 30 June 2023.

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