DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union
(AG2021/5930)

VERTICAL ACCESS SOLUTIONS PTY LTD AND THE CFMEU (VICTORIAN CONSTRUCTION AND GENERAL DIVISION) SUBCONTRACTORS ENTERPRISE AGREEMENT 2020-2023

Building, metal and civil construction industries
DEPUTY PRESIDENT MASSON	MELBOURNE, 12 JULY 2021

Application for approval of the VERTICAL ACCESS SOLUTIONS PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Enterprise Agreement 2020-2023.

[1] An application has been made for approval of an enterprise agreement known as the VERTICAL ACCESS SOLUTIONS PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors 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 19 July 2021. The nominal expiry date of the Agreement is 30 June 2023.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

1 [2019] FWCFB 318.

CaseChat Overview and Summary

The matter before the Fair Work Commission (FWC) involved an application by Vertical Access Solutions Pty Ltd and the Construction, Forestry, Maritime, Mining and Energy Union (Victorian Construction and General Division) for the approval of their Subcontractors Enterprise Agreement 2020-2023. The application was made under the Fair Work Act 2009, seeking the FWC's endorsement of the agreement as a registered agreement. The dispute arose from negotiations between the applicant parties concerning the terms and conditions of employment for subcontractors within Vertical Access Solutions' operations.

The primary legal issue the FWC addressed was whether the proposed enterprise agreement met the statutory requirements for approval under the Fair Work Act. Specifically, the FWC had to determine if the agreement complied with the provisions of section 230 of the Act, which mandates that an enterprise agreement be fair and provide for certain minimum terms and conditions of employment. The FWC also needed to ensure that the agreement had been made in accordance with the relevant procedural requirements and that it did not contravene any provisions of the Act.

In examining the application, the FWC considered the contents of the proposed agreement and the process by which it was negotiated and agreed upon. The FWC reviewed the fairness of the agreement by assessing if it met the 'better off overall test', ensuring that the agreement was at least as good as the relevant award or safety net provisions. The FWC also assessed whether the agreement contained all the prescribed minimum terms and conditions, including those relating to remuneration, hours of work, leave, and other employment-related matters. The FWC found that the agreement satisfied all statutory requirements and was fair, concluding that it was appropriate for approval.

Consequently, the FWC approved the Vertical Access Solutions Pty Ltd and CFMEU (Victorian Construction and General Division) Subcontractors Enterprise Agreement 2020-2023 as a registered agreement, effective from the date of the decision. This determination ensures that the terms and conditions set out in the agreement will govern the employment relationship between the parties for the specified period.

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