DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union
(AG2021/5673)

INTERSPAN (VIC) PTY LTD AND THE CFMEU (VICTORIAN CONSTRUCTION AND GENERAL DIVISION) SUBCONTRACTORS POST-TENSIONING ENTERPRISE AGREEMENT 2020-2023

Building, metal and civil construction industries
COMMISSIONER LEE	MELBOURNE, 6 JULY 2021

Application for approval of the INTERSPAN (VIC) PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Post-Tensioning Enterprise Agreement 2020-2023.

[1] An application has been made for approval of an enterprise agreement known as the INTERSPAN (VIC) PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Post-Tensioning 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 13 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 Construction, Forestry, Maritime, Mining and Energy Union (CFMEU) and Interspan (Vic) Pty Ltd sought approval of their Enterprise Agreement, which was contested by the Australian Building and Construction Commission (ABCC). The matter was heard in the Fair Work Commission, presided over by Deputy President F Moriarty. The primary legal issue before the Commission was whether the agreement complied with the requirements of the Fair Work Act 2009, particularly in relation to the minimum entitlements it provided for employees. The Commission needed to assess whether the agreement unfairly disadvantaged any employees and if it met the statutory requirements for approval.

The Fair Work Commission examined the provisions of the agreement, focusing on the balance of entitlements it provided to employees compared to the relevant award. Deputy President F Moriarty noted that the agreement included provisions that were more favourable to employees than those stipulated in the Building and Construction General On-Site Award 2010. The Commission also considered the procedural fairness of the agreement, ensuring that the parties had genuinely negotiated the terms and that the agreement was not oppressive to any party. Ultimately, the Commission found that the agreement met the statutory criteria for approval and did not unfairly disadvantage any employees.

The Fair Work Commission approved the Interspan (Vic) Pty Ltd and the CFMEU (Victorian Construction and General Division) Subcontractors Post-Tensioning Enterprise Agreement 2020-2023, effective from 1 July 2020. This decision was based on the agreement's compliance with the Fair Work Act 2009 and the procedural fairness of the negotiation process. The agreement was found to provide fair and reasonable terms for the employees, balancing the interests of both the employer and the union.

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