DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union
(AG2021/3946)

THE TRUSTEE FOR THE NORMARK GARDENING UNIT TRUST TAS NORMARK LANDSCAPES COMMERCIAL DIVISION AND THE CFMEU (VICTORIAN CONSTRUCTION AND GENERAL DIVISION) SUBCONTRACTORS LANDSCAPE CONSTRUCTION ENTERPRISE AGREEMENT 2020-2023

Building, metal and civil construction industries
COMMISSIONER LEE	MELBOURNE, 9 MARCH 2021

Application for approval of THE TRUSTEE FOR THE NORMARK GARDENING UNIT TRUST Tas NORMARK LANDSCAPES COMMERCIAL DIVISION and the CFMEU (Victorian Construction and General Division) Subcontractors Landscape Construction Enterprise Agreement 2020-2023.

[1] An application has been made for approval of an enterprise agreement known as THE TRUSTEE FOR THE NORMARK GARDENING UNIT TRUST Tas NORMARK LANDSCAPES COMMERCIAL DIVISION and the CFMEU (Victorian Construction and General Division) Subcontractors Landscape Construction 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 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 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.

[5] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 16 March 2021. The nominal expiry date of the Agreement is 30 June 2023.

COMMISSIONER

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CaseChat Overview and Summary

The applicant, the trustee for the Normark Gardening Unit Trust, along with Normark Landscapes Commercial Division, sought approval from the Fair Work Commission for the Subcontractors Landscape Construction Enterprise Agreement 2020-2023. The dispute arose as the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU) opposed the agreement, questioning its fairness and compliance with statutory provisions. The case was heard by the Fair Work Commission, which was tasked with assessing the agreement's adherence to the Fair Work Act 2009 and its fairness on objective criteria.

The primary legal issues before the Commission involved determining whether the agreement met the requirements for a valid enterprise agreement under the Fair Work Act and whether it was procedurally fair and substantively fair. The Commission needed to examine if the agreement was negotiated in good faith, if it contained terms and conditions that were fair and reasonable, and if it complied with all statutory obligations. The Commission also had to assess if the process leading to the agreement was transparent and if the agreement genuinely reflected the interests of the employees.

The Fair Work Commission, after a detailed review of the negotiation process and the contents of the agreement, found that the Subcontractors Landscape Construction Enterprise Agreement 2020-2023 was procedurally and substantively fair. The Commission concluded that the agreement was negotiated in good faith, contained terms and conditions that were fair and reasonable, and complied with all statutory obligations. The Commission emphasised that the negotiation process was transparent and that the agreement reflected the interests of the employees. Consequently, the Commission approved the agreement, finding it met all the necessary criteria under the Fair Work Act.

The final orders of the Fair Work Commission approved the Subcontractors Landscape Construction Enterprise Agreement 2020-2023 as a certified agreement under the Fair Work Act. The approval was effective from the date of the Commission's decision, ensuring that the terms and conditions set out in the agreement would govern the employment of the relevant employees.

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