DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union
(AG2021/4351)

POSITIVE PUMPING MELBOURNE PTY LTD AND THE CFMEU (VICTORIAN CONSTRUCTION AND GENERAL DIVISION) SUBCONTRACTORS CONCRETE PUMPING ENTERPRISE AGREEMENT 2020-2023

Building, metal and civil construction industries
DEPUTY PRESIDENT MASSON	MELBOURNE, 7 APRIL 2021

Application for approval of the POSITIVE PUMPING MELBOURNE PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Concrete Pumping Enterprise Agreement 2020-2023.

[1] An application has been made for approval of an enterprise agreement known as the POSITIVE PUMPING MELBOURNE PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Concrete Pumping 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 14 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

The matter before the Fair Work Commission involved an application for the approval of the Positive Pumping Melbourne Pty Ltd and the Construction, Forestry, Maritime, Mining and Energy Union (Victorian Construction and General Division) Subcontractors Concrete Pumping Enterprise Agreement 2020-2023. The applicant, Positive Pumping Melbourne Pty Ltd, sought to have the agreement registered as a single-employer enterprise agreement under the Fair Work Act 2009. The agreement in question was intended to cover employees who were engaged in the concrete pumping industry in Victoria, and it aimed to set out terms and conditions of employment for these workers.

The primary legal issues before the Commission were whether the proposed enterprise agreement met the requirements of the Fair Work Act and whether it was an appropriate agreement to be registered. This involved an examination of whether the agreement had been made in good faith, whether it contained the necessary minimum terms and conditions, and whether it complied with the provisions of the Act. Additionally, the Commission had to consider whether the agreement provided for an appropriate balance between the rights and interests of the employees and the employer.

The Commission found that the proposed enterprise agreement was made in good faith and contained all the required minimum terms and conditions as stipulated in the Fair Work Act. It was also satisfied that the agreement provided for an appropriate balance between the rights and interests of the employees and the employer. The Commission noted that the agreement addressed several key issues, including wages, working hours, leave entitlements, and dispute resolution mechanisms, which were relevant and appropriate for the industry. Consequently, the Commission approved the application for the registration of the Positive Pumping Melbourne Pty Ltd and the CFMEU (Victorian Construction and General Division) Subcontractors Concrete Pumping Enterprise Agreement 2020-2023.

In light of the findings, the Commission determined that the proposed enterprise agreement met the necessary requirements under the Fair Work Act and granted approval for its registration as a single-employer enterprise agreement. The agreement is now in effect and will govern the terms and conditions of employment for the employees covered by it, until such time as it is varied or replaced by a new agreement.

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