DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union
(AG2021/3952)

CDR SCAFFOLDING PTY LTD T/AS GIBRALTAR CONCRETING AND THE CFMEU (VICTORIAN CONSTRUCTION AND GENERAL DIVISION) SUBCONTRACTORS CONCRETE PLACEMENT ENTERPRISE AGREEMENT 2020-2023

Building, metal and civil construction industries
DEPUTY PRESIDENT MASSON	MELBOURNE, 12 MARCH 2021

Application for approval of the CDR SCAFFOLDING PTY LTD T/As GIBRALTAR CONCRETING and the CFMEU (Victorian Construction and General Division) Subcontractors Concrete Placement Enterprise Agreement 2020-2023.

[1] An application has been made for approval of an enterprise agreement known as the CDR SCAFFOLDING PTY LTD T/As GIBRALTAR CONCRETING and the CFMEU (Victorian Construction and General Division) Subcontractors Concrete Placement 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 19 March 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 involved a dispute between CDR Scaffolding Pty Ltd trading as Gibraltar Concreting and the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU) (Victorian Construction and General Division). The parties sought the Fair Work Commission's approval of a Subcontractors Concrete Placement Enterprise Agreement 2020-2023. The Commission was tasked with determining whether the agreement met the requirements of the Fair Work Act 2009.

The central legal issue before the Commission was whether the agreement satisfied the criteria for approval under the Fair Work Act. Specifically, the Commission had to consider whether the agreement provided for terms and conditions that were no less favourable than the relevant minimum standards and whether it complied with the procedural requirements for an enterprise agreement. Another significant aspect of the decision was the assessment of the agreement's impact on the bargaining power of the parties and whether it was negotiated in good faith.

The Commission found that the agreement met the necessary criteria for approval. It concluded that the terms and conditions of the agreement were no less favourable than the relevant minimum standards and that the agreement was the product of genuine and good faith bargaining. The Commission also noted that the agreement provided for a fair and reasonable process for resolving disputes between the parties. Consequently, the Commission approved the agreement, deeming it to be a valid and binding enterprise agreement.

The Commission's final order was the approval of the Subcontractors Concrete Placement Enterprise Agreement 2020-2023 between CDR Scaffolding Pty Ltd and the CFMEU. The agreement was to be registered with the Fair Work Commission and would apply to the employees of CDR Scaffolding Pty Ltd covered by the agreement. The decision confirmed the validity of the agreement and provided clarity for both parties regarding their respective rights and obligations under the 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