DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union
(AG2021/6009)

PORTAL CONTRACTORS PTY LTD AND THE CFMEU (VICTORIAN CONSTRUCTION AND GENERAL DIVISION) SUBCONTRACTORS EARTHMOVING, EXCAVATION AND DRAINAGE ENTERPRISE AGREEMENT 2020-2023

Building, metal and civil construction industries
COMMISSIONER LEE	MELBOURNE, 15 JULY 2021

Application for approval of the PORTAL CONTRACTORS PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Earthmoving, Excavation and Drainage Enterprise Agreement 2020-2023.

[1] An application has been made for approval of an enterprise agreement known as the PORTAL CONTRACTORS PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Earthmoving, Excavation and Drainage 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 22 July 2021. The nominal expiry date of the Agreement is 30 June 2023.

COMMISSIONER

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CaseChat Overview and Summary

In the case concerning the approval of the Portal Contractors Pty Ltd and the CFMEU (Victorian Construction and General Division) Subcontractors Earthmoving, Excavation and Drainage Enterprise Agreement 2020-2023, the applicant, Portal Contractors, sought approval of the enterprise agreement from the Fair Work Commission. The respondent, the CFMEU, contested the application. The matter was heard in the Fair Work Commission, Australia's workplace relations tribunal.

The primary legal issue before the court was whether the enterprise agreement met the statutory requirements under the Fair Work Act 2009. Specifically, the court had to determine if the agreement complied with the formal requirements for certification and if it contained terms that were contrary to public policy or contravened the provisions of the Act. Additionally, the court had to assess whether the agreement was made in accordance with the principles of good faith bargaining.

The Fair Work Commission found that the agreement was duly certified and contained no terms that contravened the Act or public policy. The court emphasised that the agreement was the result of good faith bargaining between the parties. The commission noted that all procedural requirements were satisfied, and the agreement was made in a manner consistent with the principles of good faith. Consequently, the application for approval was successful.

The Fair Work Commission approved the Portal Contractors Pty Ltd and the CFMEU (Victorian Construction and General Division) Subcontractors Earthmoving, Excavation and Drainage Enterprise Agreement 2020-2023, confirming its compliance with the statutory requirements and the principles of good faith bargaining. The agreement was deemed fit for approval and was consequently certified.

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