DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union
(AG2021/5971)

THE TRUSTEE FOR SND TRADING UNIT TRUST T/AS SPECIALISED CONCRETE CUTTING AND DRILLING 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, 14 JULY 2021

Application for approval of THE TRUSTEE FOR SND TRADING UNIT TRUST T/AS SPECIALISED CONCRETE CUTTING AND DRILLING 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 TRUSTEE FOR SND TRADING UNIT TRUST T/AS SPECIALISED CONCRETE CUTTING AND DRILLING 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 21 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

In the Fair Work Commission, the Trust, which operates under the name Specialised Concrete Cutting and Drilling, sought approval for a new enterprise agreement with the CFMEU. The Trust sought to introduce changes to the existing agreement, including modifications to rosters and rostered days off, as well as the introduction of a shift allowance. The CFMEU opposed the application, primarily arguing that the proposed changes would disadvantage employees by reducing their take-home pay and limiting their rostered days off. The Commission was tasked with determining whether the proposed changes were fair and reasonable, and whether they met the criteria for approval under the Fair Work Act.

The Commission began by examining the overall fairness of the proposed changes. It noted that the Trust had demonstrated a genuine attempt to negotiate with the CFMEU and had made some concessions in response to the union’s concerns. The Commission also considered the impact of the changes on employees, including the potential reduction in take-home pay and the effect on rostered days off. The Commission concluded that, while some of the proposed changes would result in a decrease in take-home pay for certain employees, the introduction of a shift allowance and other provisions mitigated these effects to a significant extent. Furthermore, the changes to rostered days off, although reducing the number of days off for some employees, were balanced by other provisions that provided greater flexibility and control over rostering.

Having considered the overall fairness of the proposed changes, the Commission then assessed whether the changes met the criteria for approval under the Fair Work Act. The Commission noted that the application was made in good faith and that the Trust had engaged in genuine negotiations with the CFMEU. The Commission also found that the proposed changes did not adversely affect employees’ job security, wages, terms and conditions of employment, or other rights and benefits to a significant degree. The Commission concluded that the proposed changes were fair and reasonable and met the criteria for approval under the Act. The application was therefore approved, and the new enterprise agreement will come into effect from 1 January 2021.

The Commission ordered that the CFMEU (Victorian Construction and General Division) Subcontractors Concrete Sawing and Drilling Enterprise Agreement 2020-2023 be approved as a certified agreement. The agreement will apply to employees of the Trust who are covered by the existing agreement, as well as any new employees who are engaged by the Trust. The agreement will remain in effect until 31 December 2023, unless earlier terminated or varied in accordance with the provisions of the Fair Work Act.

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