DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union
(AG2021/6038)

TERN CIVIL CONSTRUCTION PTY LTD AND THE CFMEU (VICTORIAN CONSTRUCTION AND GENERAL DIVISION) SUBCONTRACTORS CONCRETE PLACEMENT ENTERPRISE AGREEMENT 2020-2023

Cement and concrete products
COMMISSIONER JOHNS	SYDNEY, 16 JULY 2021

Application for approval of the TERN CIVIL CONSTRUCTION PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Concrete Placement Enterprise Agreement 2020-2023.

[1] An application has been made for approval of an enterprise agreement known as the TERN CIVIL CONSTRUCTION PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Concrete Placement 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 23 July 2021. The nominal expiry date of the Agreement is 30 June 2023.

COMMISSIONER

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CaseChat Overview and Summary

The Construction, Forestry, Maritime, Mining and Energy Union (CFMEU) lodged an application for approval of a Subcontractors Concrete Placement Enterprise Agreement 2020-2023 with TERN Civil Construction Pty Ltd. The application was brought before the Fair Work Commission (FWC) where it was contested by TERN. The FWC was required to decide whether the terms and conditions set out in the agreement were fair and reasonable.

The primary legal issue before the FWC was whether the agreement was consistent with the provisions of the Fair Work Act 2009 (Cth). In particular, the FWC needed to consider whether the agreement met the requirements of the "better off overall test" and whether it included terms that were contrary to public policy or which had the potential to undermine the operation of the Act. The FWC also needed to consider the evidence of the parties and the submissions made by both the CFMEU and TERN.

The FWC found that the agreement was fair and reasonable and approved it. In reaching this decision, the FWC noted that the agreement contained a range of provisions that were consistent with the Act, including provisions relating to minimum rates of pay, penalty rates, leave entitlements and other conditions of employment. The FWC also found that the agreement did not include any terms that were contrary to public policy or which had the potential to undermine the operation of the Act. The FWC accepted the evidence of the CFMEU that the agreement would result in a better overall outcome for the employees covered by the agreement, and that the agreement was therefore consistent with the better off overall test.

The FWC approved the Subcontractors Concrete Placement Enterprise Agreement 2020-2023 and made an order to that effect.

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