DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union
(AG2021/6030)

INTRA FORCE TECHNOLOGIES PTY. LTD. AND THE CFMEU (VICTORIAN CONSTRUCTION AND GENERAL DIVISION) SUBCONTRACTORS POST-TENSIONING ENTERPRISE AGREEMENT 2020-2023

Building, metal and civil construction industries
DEPUTY PRESIDENT MASSON	MELBOURNE, 16 JULY 2021

Application for approval of the INTRA FORCE TECHNOLOGIES PTY. LTD. and the CFMEU (Victorian Construction and General Division) Subcontractors Post-Tensioning Enterprise Agreement 2020-2023.

[1] An application has been made for approval of an enterprise agreement known as the INTRA FORCE TECHNOLOGIES PTY. LTD. and the CFMEU (Victorian Construction and General Division) Subcontractors Post-Tensioning 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 23 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

The matter before the Fair Work Commission concerned the approval of the Subcontractors Post-Tensioning Enterprise Agreement 2020-2023 between Intra Force Technologies Pty Ltd and the Construction, Forestry, Maritime, Mining and Energy Union (Victorian Construction and General Division). The union sought approval of the agreement under the Fair Work Act 2009, which mandates that such agreements must meet certain criteria before they can be registered. The applicant, the union, argued that the agreement complied with the requirements of the Act and should be approved.

The central legal issue for the Commission to determine was whether the agreement satisfied the conditions set out in the Fair Work Act for enterprise agreements. Specifically, the Commission needed to assess whether the agreement provided for the terms and conditions of employment for the relevant employees, and whether it adhered to the "better off overall test" which requires that employees be no worse off financially than under their previous conditions of employment. Furthermore, the Commission had to consider whether the agreement was made in accordance with the procedural requirements of the Act, including whether it was genuinely negotiated and whether there was proper consultation.

In reaching its decision, the Commission found that the agreement met all necessary requirements. It was established that the agreement covered the terms and conditions of employment for the relevant employees, and that the union had demonstrated that the agreement was better off overall for employees by comparing the financial benefits and conditions under the new agreement to those under the previous agreement. The Commission also determined that the agreement had been genuinely negotiated and that the necessary consultation processes had been followed. Given these findings, the Commission approved the agreement for registration, ensuring it would now be legally binding on the parties involved.

The final orders of the Commission included the approval and registration of the Subcontractors Post-Tensioning Enterprise Agreement 2020-2023, effective from the date of the decision. This meant that the terms of the agreement would govern the employment conditions for the relevant employees, and the union and the employer were bound by the terms of 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