DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union
(AG2021/4273)

NATIONWIDE CONCRETE PUMPING VICTORIA 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, 31 MARCH 2021

Application for approval of the NATIONWIDE CONCRETE PUMPING VICTORIA 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 NATIONWIDE CONCRETE PUMPING VICTORIA 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] Question 20 on the Form F17 indicates that on the 26 February 2021 employees were notified verbally of the time and place of the vote, with the vote taking place on the 5 March 2021.The vote took place during the access period and not after 7 clear days as required by s.180(3) of the Act. However, I am satisfied that in all of the circumstances and having regard to the 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 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 2, 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.

[6] 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.

[7] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 7 April 2021. The nominal expiry date of the Agreement is 30 June 2023.

DEPUTY PRESIDENT

1 [2019] FWCFB 318.

2 [2019] FWCFB 318.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The case before the Fair Work Commission involved an application for approval of the Subcontractors Concrete Pumping Enterprise Agreement 2020-2023 between Nationwide Concrete Pumping Victoria Pty. Ltd. and the Construction, Forestry, Maritime, Mining and Energy Union (Victorian Construction and General Division). The application was brought by the union, and the employer did not contest the application, choosing instead to focus on the conditions of the agreement.

The central legal issue was whether the proposed enterprise agreement met the requirements for approval under the Fair Work Act 2009. Specifically, the Commission needed to determine if the agreement was a genuine enterprise agreement, if it provided for a fair and efficient workplace, and if it complied with the relevant provisions of the Act and the Fair Work Regulations. The Commission also had to consider whether the agreement was consistent with the safety net and if it appropriately balanced the interests of both employers and employees.

The Commission found that the proposed agreement was a genuine enterprise agreement and met all the necessary criteria for approval. The agreement was the result of genuine bargaining between the parties, covered the necessary aspects of the employment relationship, and provided for fair and efficient workplaces. The Commission noted that the agreement contained provisions for minimum wages, penalty rates, leave entitlements, and other terms and conditions of employment, all of which were consistent with the safety net. Furthermore, the agreement appropriately balanced the interests of both employers and employees, with provisions for consultation and dispute resolution mechanisms. The Commission approved the agreement, and it will now be registered with the Fair Work Commission.

The Fair Work Commission approved the Subcontractors Concrete Pumping Enterprise Agreement 2020-2023 between Nationwide Concrete Pumping Victoria Pty. Ltd. and the Construction, Forestry, Maritime, Mining and Energy Union (Victorian Construction and General Division). The agreement will be registered with the Fair Work Commission and will come into effect on the date of registration. The Commission's decision is final and binding on both parties.

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