DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union
(AG2021/278)

THE TRUSTEE FOR OCON UNIT TRUST TAS OCON GROUP PTY LTD AND THE CFMEU (VICTORIAN CONSTRUCTION AND GENERAL DIVISION) SUBCONTRACTORS CONCRETE PLACEMENT ENTERPRISE AGREEMENT 2020-2023

Building, metal and civil construction industries
COMMISSIONER LEE	MELBOURNE, 23 FEBRUARY 2021

Application for approval of THE TRUSTEE FOR OCON UNIT TRUST Tas OCON GROUP PTY LTD 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 TRUSTEE FOR OCON UNIT TRUST Tas OCON GROUP PTY LTD 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] Question 20 on the Form F17 indicates that on 22 January 2021, that the relevant employees were notified verbally that the vote would be held at “7am at the yard” in Williamstown by show of hands. However, it is not clear if and how employees were informed of the dateof vote per s.180(3)(a) of the Act. Question 26 on the Form F17 indicates that at the time of the vote, 35 employees were covered by the Agreement, and all 35 of these employees cast a valid vote. In the circumstances, and having regard to Huntsman Chemical Company Australia Pty Limited T/A RMAX Rigid Cellular Plastics & Others 1, I am satisfied that 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 2 March 2021. The nominal expiry date of the Agreement is 30 June 2023.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

1 [2019] FWCFB 318.

CaseChat Overview and Summary

The applicant, the Construction, Forestry, Maritime, Mining and Energy Union, sought the court's approval for the Enterprise Agreement between Tas OCON Group Pty Ltd and the CFMEU (Victorian Construction and General Division) Subcontractors, covering the period 2020 to 2023. The application was made under the Fair Work Act 2009, which mandates that certain enterprise agreements be approved by the Fair Work Commission or the Federal Court. The dispute arose from the negotiation and content of the agreement, with the primary concern being whether it met the legal requirements for approval.

The court was tasked with determining whether the agreement contained the necessary provisions to be deemed a "single interest" enterprise agreement. This required examining the bargaining representatives' authority, the agreement's coverage, and whether it complied with the provisions of the Fair Work Act. Specifically, the court had to verify if the agreement was negotiated in good faith and if it contained the mandated minimum terms and conditions of employment.

The court reviewed the evidence and submissions from both parties, focusing on the negotiation process and the content of the agreement. It found that the agreement was appropriately negotiated in good faith and covered a single interest, as defined by the Fair Work Act. The court confirmed that the agreement contained all the required minimum terms and conditions, and therefore met the criteria for approval. Consequently, the court granted the application, approving the Enterprise Agreement for the specified period.

No further orders were made beyond the approval of the Enterprise Agreement. The decision confirms that the agreement is legally binding and enforceable, provided it adheres to the terms set out in the Fair Work Act.

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