DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union
(AG2021/5908)

DELTA PTY LTD T/AS DELTA GROUP AND THE CFMEU (VICTORIAN CONSTRUCTION AND GENERAL DIVISION) SUBCONTRACTORS DEMOLITION ENTERPRISE AGREEMENT 2020-2023

Building, metal and civil construction industries
DEPUTY PRESIDENT MASSON	MELBOURNE, 9 JULY 2021

Application for approval of the DELTA PTY LTD T/As DELTA GROUP and the CFMEU (Victorian Construction and General Division) Subcontractors Demolition Enterprise Agreement 2020-2023.

[1] An application has been made for approval of an enterprise agreement known as the DELTA PTY LTD T/As DELTA GROUP and the CFMEU (Victorian Construction and General Division) Subcontractors Demolition 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] 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 & Others¹, 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.

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

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The matter before the Fair Work Commission involved an application by Delta Pty Ltd and the Construction, Forestry, Maritime, Mining and Energy Union (Victorian Construction and General Division) to approve a Subcontractors Demolition Enterprise Agreement for the period 2020-2023. The agreement aimed to regulate the terms and conditions of employment for subcontractors engaged in demolition work by Delta Pty Ltd. The Commission's task was to determine whether the proposed agreement met the criteria for approval under the Fair Work Act 2009.

The primary legal issues addressed by the Commission were whether the agreement was genuinely a bargain between the parties, whether it complied with the good faith bargaining requirements, and whether it met the other statutory criteria set out in the Fair Work Act. The Commission also needed to consider if the agreement was in the best interests of the employees and whether it provided for fair and reasonable terms and conditions. Furthermore, the Commission had to assess whether the agreement was consistent with the National Employment Standards and the applicable awards.

The Commission found that the agreement was a genuine bargain between the parties, reflecting a balance of give-and-take on both sides. The Commission concluded that the parties had engaged in good faith bargaining and that the agreement met the statutory criteria for approval. The Commission was satisfied that the agreement provided for fair and reasonable terms and conditions for employees, including provisions for wages, entitlements, and dispute resolution. The Commission also found that the agreement was consistent with the National Employment Standards and did not undermine applicable awards.

In light of the findings, the Commission approved the Subcontractors Demolition Enterprise Agreement 2020-2023 between Delta Pty Ltd and the CFMEU (Victorian Construction and General Division). The agreement was deemed to be in the best interests of the employees and to provide for fair and reasonable terms and conditions of employment. The approval of the agreement was subject to the parties complying with the relevant provisions of the Fair Work Act and any other applicable laws.

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