DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union
(AG2021/4548)

MARKSCON COMMERCIAL PTY LTD AND THE CFMEU (VICTORIAN CONSTRUCTION AND GENERAL DIVISION) SUBCONTRACTORS FORMWORK ENTERPRISE AGREEMENT 2020-2023

Building, metal and civil construction industries
DEPUTY PRESIDENT MASSON	MELBOURNE, 16 APRIL 2021

Application for approval of the MARKSCON COMMERCIAL PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Formwork Enterprise Agreement 2020-2023.

[1] An application has been made for approval of an enterprise agreement known as the MARKSCON COMMERCIAL PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Formwork 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 23 April 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

In the Fair Work Commission, the Construction, Forestry, Maritime, Mining and Energy Union sought approval for the MARKSCON COMMERCIAL PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Formwork Enterprise Agreement 2020-2023. The dispute centred around the terms and conditions outlined in the agreement, specifically whether they complied with the relevant industrial laws and provided adequate protections for employees.

The legal issues that the Commission was required to decide included whether the proposed agreement was genuinely an enterprise agreement as defined under the Fair Work Act 2009, and if it complied with the good faith bargaining provisions. Additionally, the Commission needed to determine whether the agreement met the minimum standards set out in the National Employment Standards and if it provided fair and reasonable terms for employees.

The Commission considered the submissions and evidence from both parties, examining the negotiation process and the content of the agreement. The Commission found that the agreement was genuinely an enterprise agreement and that it was negotiated in good faith. The Commission also determined that the agreement complied with the minimum standards and provided fair and reasonable terms for employees. Consequently, the Commission approved the MARKSCON COMMERCIAL PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Formwork Enterprise Agreement 2020-2023.

The Commission's final orders included the approval of the enterprise agreement, which would now be applicable to the employees of MARKSCON COMMERCIAL PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Formwork Enterprise. This decision provides certainty for both parties and ensures that employees are provided with fair and reasonable terms of employment.

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