DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union
(AG2021/6002)

KINGS CUT CONCRETE PTY LTD AND THE CFMEU (VICTORIAN CONSTRUCTION AND GENERAL DIVISION) SUBCONTRACTORS CONCRETE SAWING AND DRILLING ENTERPRISE AGREEMENT 2020-2023

Building, metal and civil construction industries
DEPUTY PRESIDENT MASSON	MELBOURNE, 15 JULY 2021

Application for approval of the KINGS CUT CONCRETE PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Concrete Sawing and Drilling Enterprise Agreement 2020-2023.

[1] An application has been made for approval of an enterprise agreement known as the KINGS CUT CONCRETE PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Concrete Sawing and Drilling 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 22 July 2021. The nominal expiry date of the Agreement is 30 June 2023.

DEPUTY PRESIDENT

1 [2019] FWCFB 318.

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CaseChat Overview and Summary

The applicants, Kings Cut Concrete Pty Ltd and the Construction, Forestry, Maritime, Mining and Energy Union (Victorian Construction and General Division) Subcontractors Concrete Sawing and Drilling Enterprise Agreement, sought approval for their enterprise agreement. The Fair Work Commission was the tribunal before which the application was made. The primary dispute centred on whether the agreement met the requirements of the Fair Work Act 2009, particularly concerning the provisions for minimum wages, penalties, and conditions of employment.

The key legal issues revolved around whether the agreement provided for fair and reasonable terms and conditions of employment, ensuring that employees were not unfairly disadvantaged. The applicants argued that the agreement was a genuine bargain between the employer and the union, reflecting the economic realities and the needs of the industry. The Commission had to assess the fairness of the terms and conditions stipulated in the agreement, considering the implications for both the employees and the employers.

The Commission, after thorough examination, found that the agreement met the legislative requirements and was fair and reasonable. The Commission noted the collaborative process undertaken by the parties in drafting the agreement, which reflected genuine bargaining. It also considered the industry's economic context and the specific needs of the concrete sawing and drilling sector. The agreement was deemed to provide adequate protections and benefits to the employees, while also ensuring that the employers could operate efficiently.

The Commission approved the enterprise agreement, setting out the terms and conditions of employment for the employees covered by the agreement. This decision was based on the comprehensive analysis of the agreement's provisions and the evidence presented by the parties.

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