DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union
(AG2021/207)

DESCON VIC PTY LTD AND THE CFMEU (VICTORIAN CONSTRUCTION AND GENERAL DIVISION) BUILDER ENTERPRISE AGREEMENT 2020-2023

Building, metal and civil construction industries
DEPUTY PRESIDENT MASSON	MELBOURNE, 16 FEBRUARY 2021

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

[1] An application has been made for approval of an enterprise agreement known as the DESCON VIC PTY LTD and the CFMEU (Victorian Construction and General Division) Builder 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 the 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 23 February 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 applicant, DESCON VIC PTY LTD, applied to the Fair Work Commission for the approval of the Builder Enterprise Agreement 2020-2023 between the company and the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU). The dispute arose due to objections raised by the applicant to the proposed agreement. The Fair Work Commission was tasked with assessing the agreement to determine whether it met the criteria for approval under the Fair Work Act 2009. The key legal issues before the Commission were whether the agreement complied with the provisions of the Act, particularly concerning the process of bargaining and the content of the agreement itself.

The Commission considered whether the agreement was genuinely negotiated between the parties and whether it met the requirements for approval under the Fair Work Act. The Commission examined the process of negotiation and whether it complied with the procedural fairness principles. Additionally, the Commission assessed whether the agreement contained terms and conditions that were fair and reasonable, and whether it met the criteria for a modern award. The Commission also reviewed the provisions of the agreement to ensure that it did not include any terms that were contrary to public policy or that undermined the existing industrial relations framework.

After considering the evidence and submissions from both parties, the Commission found that the agreement had been genuinely negotiated and contained terms that were fair and reasonable. The Commission determined that the agreement met the criteria for approval under the Act and did not contain any terms that were contrary to public policy. The Commission approved the agreement, finding that it provided a fair and reasonable outcome for both the employer and the employees. The Commission's decision was based on a detailed analysis of the evidence and the application of the relevant legal principles.

The Fair Work Commission approved the Builder Enterprise Agreement 2020-2023 between DESCON VIC PTY LTD and the CFMEU. The Commission found that the agreement had been genuinely negotiated and contained terms that were fair and reasonable. The Commission determined that the agreement met the criteria for approval under the Fair Work Act and did not contain any terms that were contrary to public policy. The approval of the agreement provides certainty for both the employer and the employees and ensures that the terms and conditions of employment are fair and reasonable.

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