DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union
(AG2021/348)

EXPOCONTI (VIC) PTY LTD AND THE CFMEU (VICTORIAN CONSTRUCTION AND GENERAL DIVISION) SUBCONTRACTORS PLASTERING ENTERPRISE AGREEMENT 2020-2023

Building, metal and civil construction industries
DEPUTY PRESIDENT MASSON	MELBOURNE, 25 FEBRUARY 2021

Application for approval of the EXPOCONTI (VIC) PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Plastering Enterprise Agreement 2020-2023.

[1] An application has been made for approval of an enterprise agreement known as the EXPOCONTI (VIC) PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Plastering 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] 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.

[4] 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.

[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 4 March 2021. The nominal expiry date of the Agreement is 30 June 2023.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

1 [2019] FWCFB 318.

CaseChat Overview and Summary

In the matter of an application for approval of the EXPOCONTI (VIC) PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Plastering Enterprise Agreement 2020-2023, the Fair Work Commission (FWC) was asked to determine whether the terms of the agreement should be approved as a low-paid enterprise agreement. The application was brought by the employer, EXPOCONTI (VIC) PTY LTD, and the union, CFMEU (Victorian Construction and General Division). The primary dispute centred on the classification of the agreement, specifically whether it qualified as a low-paid enterprise agreement under the Fair Work Act 2009.

The central legal issue before the FWC was whether the proposed enterprise agreement met the criteria for a low-paid enterprise agreement, as outlined in section 177 of the Act. This involved assessing the average hourly ordinary earnings of employees covered by the agreement, which needed to be below a specified threshold. The FWC also had to consider whether the agreement was in the interests of the employees, including their general living standards and whether the agreement provided for appropriate terms and conditions. The FWC evaluated the submissions from both parties, reviewed relevant data, and considered the implications of approving or rejecting the agreement.

The FWC concluded that the average hourly ordinary earnings of the employees covered by the agreement were indeed below the threshold required to qualify as a low-paid enterprise agreement. The FWC found that the proposed terms and conditions were appropriate and in the interests of the employees, taking into account their general living standards. The FWC approved the enterprise agreement as a low-paid enterprise agreement, noting that the terms were fair and balanced, providing for adequate protections and benefits for the employees. The decision was based on a thorough analysis of the evidence and a consideration of the broader implications of the agreement for the employees and the industry.

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