DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union
(AG2021/4220)

M GROUP TRADES AND LABOUR PTY. LTD. AND THE CFMEU (VICTORIAN CONSTRUCTION AND GENERAL DIVISION) SUBCONTRACTORS LABOUR HIRE ENTERPRISE AGREEMENT 2020-2023

Building, metal and civil construction industries
DEPUTY PRESIDENT MASSON	MELBOURNE, 29 MARCH 2021

Application for approval of the M GROUP TRADES AND LABOUR PTY. LTD. and the CFMEU (Victorian Construction and General Division) Subcontractors Labour Hire Enterprise Agreement 2020-2023.

[1] An application has been made for approval of an enterprise agreement known as the M GROUP TRADES AND LABOUR PTY. LTD. and the CFMEU (Victorian Construction and General Division) Subcontractors Labour Hire 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] Question 20 on the Form F17 indicates that on 10 February 2021 employees were notified in writing of the time and place of the vote, with the vote taking place between 17 February and 24 February 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 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 5 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 involved an application for approval of an enterprise agreement between the M Group Trades and Labour Pty Ltd and the Construction, Forestry, Maritime, Mining and Energy Union (Victorian Construction and General Division) Subcontractors Labour Hire Enterprise Agreement 2020-2023. The application was heard by the Fair Work Commission, a tribunal under Australian federal law with jurisdiction to make binding decisions on workplace issues. The dispute centred on whether the proposed agreement complied with the Fair Work Act 2009, which mandates that enterprise agreements must meet certain legal standards to be approved.

The key legal issues the Commission needed to address were whether the agreement contained mandatory terms that were permissible, and whether the process by which the agreement was made complied with legal requirements. In particular, the Commission had to consider whether the agreement met the "better off overall test" which requires that employees are not disadvantaged by the agreement compared to their previous conditions. The Commission also had to determine if proper procedural steps were taken to ensure genuine bargaining between the parties.

The Fair Work Commission found that the agreement did indeed meet the legal standards required by the Fair Work Act. The Commission noted that the agreement included terms that were both reasonable and necessary for the operation of a fair and efficient workplace. It concluded that the agreement passed the better off overall test, as it provided employees with improved conditions and benefits compared to their previous arrangements. Furthermore, the Commission was satisfied that the process of reaching the agreement was conducted in good faith and that both parties had genuinely bargained. Consequently, the Commission approved the proposed enterprise agreement.

The final order of the Fair Work Commission was the approval of the M Group Trades and Labour Pty Ltd and the CFMEU (Victorian Construction and General Division) Subcontractors Labour Hire Enterprise Agreement 2020-2023, effective from the date of the decision. This decision ensures that the terms and conditions of employment set out in the agreement are legally binding on the parties and can be enforced by the Commission if necessary.

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