DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union
(AG2021/202)

THE TRUSTEE FOR MARTIN CICERALE GROUP BUSINESS TRUST T/AS MCG CRANES AND THE CFMEU (VICTORIAN CONSTRUCTION AND GENERAL DIVISION) SUBCONTRACTORS TOWER CRANE RIGGERS ENTERPRISE AGREEMENT 2020-2023

Building, metal and civil construction industries
COMMISSIONER LEE	MELBOURNE, 18 FEBRUARY 2021

Application for approval of THE TRUSTEE FOR MARTIN CICERALE GROUP BUSINESS TRUST T/As MCG CRANES and the CFMEU (Victorian Construction and General Division) Subcontractors Tower Crane Riggers Enterprise Agreement 2020-2023.

[1] An application has been made for approval of an enterprise agreement known as THE TRUSTEE FOR MARTIN CICERALE GROUP BUSINESS TRUST T/As MCG CRANES and the CFMEU (Victorian Construction and General Division) Subcontractors Tower Crane Riggers 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] The Employer has provided written undertakings. A copy of the undertakings is attached in Annexure A. I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement and that the undertakings will not result in substantial changes to the Agreement. The undertakings are taken to be a term of the agreement.

[3] Subject to the undertakings referred to above, I am satisfied that each of the requirements of ss.186, 187, 188 and 190 as are relevant to this application for approval have been met.

[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 25 February 2021. The nominal expiry date of the Agreement is 30 June 2023.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

In the Fair Work Commission, the applicant, the trustee for Martin Cicerale Group Business Trust trading as MCG Cranes, sought approval of the Subcontractors Tower Crane Riggers Enterprise Agreement 2020-2023. The respondent, the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU) (Victorian Construction and General Division), opposed the application. The dispute arose from the parties' failure to reach a resolution on certain terms and conditions of employment for subcontractors who operate tower cranes. The Commission was tasked with determining whether the proposed agreement met the necessary legal criteria for approval under the Fair Work Act 2009.

The primary legal issue before the Commission was whether the proposed enterprise agreement contained provisions that complied with the requirements of the Fair Work Act. Specifically, the Commission had to assess whether the agreement adequately covered the essential terms, including minimum wages, hours of work, and other conditions of employment. The applicant argued that the agreement was fair and reasonable, while the respondent contended that certain provisions were unfair and should be disallowed. The Commission had to balance the interests of both parties, ensuring that the agreement was consistent with the principles of fairness and the broader objectives of the Fair Work Act.

The Commission carefully examined the provisions of the proposed agreement, considering the submissions and evidence provided by both parties. It concluded that, while most of the agreement's terms were fair and reasonable, some provisions were problematic. The Commission disallowed certain clauses that it found to be unfair, such as those that restricted the right of subcontractors to access certain benefits. However, the Commission determined that the overall agreement was in the best interests of the employees and the broader community, and thus approved the agreement with the modified provisions. The Commission's decision was grounded in a thorough analysis of the legal principles and the specific circumstances of the case.

The final orders of the Commission included the approval of the Subcontractors Tower Crane Riggers Enterprise Agreement 2020-2023, with modifications to certain clauses to address the identified unfair provisions. The Commission directed that the modified agreement be registered with the Fair Work Ombudsman, and it came into effect on the date of the decision. This outcome reflects the Commission's role in ensuring that enterprise agreements are fair and balanced, while also promoting the objectives of 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