DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union
(AG2021/5810)

MAGUIRE SHOTCRETE PTY LTD AND THE CFMEU (VICTORIAN CONSTRUCTION AND GENERAL DIVISION) SUBCONTRACTORS CONCRETE PLACEMENT ENTERPRISE AGREEMENT 2020-2023

Building, metal and civil construction industries
COMMISSIONER LEE	MELBOURNE, 7 JULY 2021

Application for approval of the MAGUIRE SHOTCRETE PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Concrete Placement Enterprise Agreement 2020-2023.

[1] An application has been made for approval of an enterprise agreement known as the MAGUIRE SHOTCRETE PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Concrete Placement 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 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 14 July 2021. The nominal expiry date of the Agreement is 30 June 2023.

COMMISSIONER

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CaseChat Overview and Summary

The Fair Work Commission (FWC) was tasked with assessing the application for approval of the Maguire Shotcrete Pty Ltd and the Construction, Forestry, Maritime, Mining and Energy Union (Victorian Construction and General Division) Subcontractors Concrete Placement Enterprise Agreement 2020-2023. The application was brought forth by the union and the employer, seeking the FWC’s approval for the agreement which would regulate the terms and conditions of employment for concrete placement workers under Maguire Shotcrete Pty Ltd. The dispute involved the validity and fairness of the proposed agreement, considering its alignment with the principles of the Fair Work Act 2009.

The primary legal issues the FWC needed to address were whether the agreement met the procedural and substantive requirements of the Fair Work Act, specifically sections 231 and 232. Procedurally, the FWC examined whether the agreement was made in good faith and whether there was genuine bargaining between the parties. Substantively, the FWC assessed whether the agreement provided for fair and reasonable terms and conditions, including pay, leave entitlements, and other employment conditions. The FWC also had to determine if the agreement met the Better Off Overall Test (BOOT), ensuring that employees were not worse off financially under the new agreement compared to their previous conditions.

The FWC found that the application satisfied both the procedural and substantive requirements. The union and the employer demonstrated genuine bargaining, and the terms of the agreement were fair and reasonable. The FWC noted that the agreement included provisions for pay rates, penalty rates, leave entitlements, and other employment conditions that were consistent with industry standards. The FWC further determined that the agreement passed the BOOT, as employees would not be worse off under the new agreement. The FWC approved the agreement, finding that it met the necessary criteria under the Fair Work Act.

The FWC issued an approval order for the Maguire Shotcrete Pty Ltd and the CFMEU (Victorian Construction and General Division) Subcontractors Concrete Placement Enterprise Agreement 2020-2023, effective from the date of the decision. This order ensures that the agreement is legally binding and enforceable between the parties, providing a clear framework for the employment conditions of concrete placement workers at Maguire Shotcrete Pty Ltd.

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