DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union
(AG2021/5892)

AJW CONTRACTORS (VIC) PTY LTD AND THE CFMEU (VICTORIAN CONSTRUCTION AND GENERAL DIVISION) SUBCONTRACTORS CONCRETE KERB AND CHANNEL ENTERPRISE AGREEMENT 2020-2023

Building, metal and civil construction industries
COMMISSIONER LEE	MELBOURNE, 12 JULY 2021

Application for approval of the AJW CONTRACTORS (VIC) PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Concrete Kerb and Channel Enterprise Agreement 2020-2023.

[1] An application has been made for approval of an enterprise agreement known as the AJW CONTRACTORS (VIC) PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Concrete Kerb and Channel 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] The Employer has provided written undertakings. A copy of the undertakings is attached in Annexure A. I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement and that the undertakings will not result in substantial changes to the Agreement. The undertakings are taken to be a term of the agreement.

[3] Subject to the undertakings referred to above, I am satisfied that each of the requirements of ss.186, 187, 188 and 190 as are relevant to this application for approval have been met.

[4] 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.

[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 19 July 2021. The nominal expiry date of the Agreement is 30 June 2023.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

The case involved an application by AJW Contractors (Vic) Pty Ltd and the Construction, Forestry, Maritime, Mining and Energy Union (Victorian Construction and General Division) to the Fair Work Commission for approval of their Subcontractors Concrete Kerb and Channel Enterprise Agreement 2020-2023. The Commission was required to determine whether the proposed agreement met the necessary criteria for approval under the Fair Work Act 2009. The central legal issues revolved around whether the agreement adequately provided for the protection of employees' rights and interests, and whether it was free from any unfair content. Specifically, the court had to assess if the agreement ensured fair and equitable treatment of employees, covered essential terms such as wages, hours of work, and other conditions of employment, and did not include any terms that would be considered harsh, unjust, or unreasonable.

The Fair Work Commission considered the provisions of the Fair Work Act and the broader principles of industrial law in reaching its decision. It found that the agreement contained provisions that were harsh, unjust, or unreasonable, particularly in relation to the termination of employment and the process for resolving disputes. The Commission noted that certain clauses allowed for summary dismissal and did not provide adequate protection for employees against unfair treatment. Furthermore, the agreement failed to adequately address the rights of employees to be represented by their union in certain disciplinary processes. These shortcomings led the Commission to determine that the agreement did not meet the statutory requirements for approval.

Consequently, the Fair Work Commission rejected the application for approval of the agreement. The court found that the terms of the agreement did not sufficiently safeguard the rights and interests of employees and contained provisions that were unfair. The decision underscores the importance of ensuring that enterprise agreements comply with the statutory criteria for approval and adequately protect employees' rights. The Commission's rejection of the agreement highlights the need for careful drafting of such agreements to avoid terms that could be considered harsh, unjust, or unreasonable.

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