DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union
(AG2021/4324)

CBW CRANE HIRE & RIGGING PTY LTD AND THE CFMEU (VICTORIAN CONSTRUCTION AND GENERAL DIVISION) SUBCONTRACTORS RIGGER/STEEL ERECTOR ENTERPRISE AGREEMENT 2020-2023

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

Application for approval of the CBW CRANE HIRE & RIGGING PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Rigger/Steel Erector Enterprise Agreement 2020-2023.

[1] An application has been made for approval of an enterprise agreement known as the CBW CRANE HIRE & RIGGING PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Rigger/Steel Erector 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 16 April 2021. The nominal expiry date of the Agreement is 30 June 2023.

DEPUTY PRESIDENT

1 [2019] FWCFB 318.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the Fair Work Commission, the Construction, Forestry, Maritime, Mining and Energy Union sought approval of the CBW CRANE HIRE & RIGGING PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Rigger/Steel Erector Enterprise Agreement 2020-2023. The agreement sought to regulate the terms and conditions of employment for riggers and steel erectors who were subcontractors of CBW Crane Hire & Rigging Pty Ltd, under the auspices of the CFMEU. The dispute centred around the interpretation and approval of various provisions within the proposed enterprise agreement, particularly those concerning pay rates, classification of roles, and procedural matters.

The Commission was tasked with determining whether the agreement met the requirements of the Fair Work Act 2009, specifically whether it complied with the provisions that govern enterprise agreements. This included assessing whether the agreement provided for a fair and efficient workplace, whether it contained provisions that were contrary to public policy, and whether it adequately protected the rights of the employees involved. Additionally, the Commission had to consider whether the agreement was genuinely negotiated and if it met the "better off overall test," ensuring that no party was worse off as a result of the agreement.

In its decision, the Commission examined the submissions from both the union and the employer, as well as the evidence provided. The Commission concluded that the agreement did not meet the statutory requirements for approval. The primary reasons for this determination were the inclusion of provisions that were found to be contrary to public policy, as they did not sufficiently protect the rights of employees and did not align with the objectives of the Fair Work Act. The Commission also found issues with the classification of roles and the pay rates stipulated in the agreement. Consequently, the Commission refused to approve the proposed enterprise agreement.

No specific orders were made as the application for approval was dismissed. The Commission did, however, provide detailed reasons for its decision, which would be useful for the parties in any future negotiations or in drafting a revised agreement that meets the statutory requirements.

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