DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union
(AG2021/205)

SELECT CRANES & RIGGING PTY LTD AND THE CFMEU (VICTORIAN CONSTRUCTION AND GENERAL DIVISION) SUBCONTRACTORS TOWER CRANE RIGGERS ENTERPRISE AGREEMENT 2020-2023

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

Application for approval of the SELECT CRANES & RIGGING PTY LTD 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 SELECT CRANES & RIGGING PTY LTD 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] 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] 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 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 applicants in this matter were the Construction, Forestry, Maritime, Mining and Energy Union, and Select Cranes & Rigging Pty Ltd. They sought approval of the Subcontractors Tower Crane Riggers Enterprise Agreement 2020-2023. The application was made under section 232 of the Fair Work Act 2009. The application was opposed by the Australian Building and Construction Commission, which objected to the proposed agreement on the basis that it did not meet the "better off overall test" under section 235 of the Fair Work Act.

The central issue for the court was whether the proposed enterprise agreement met the requirements of the Fair Work Act, specifically whether it satisfied the "better off overall test". This test requires that, on balance, the employees covered by the agreement are not worse off than they would be under their existing conditions of employment or applicable award provisions. The court had to weigh the benefits and detriments of the proposed agreement, considering the overall impact on the employees.

In assessing the application, the court considered the evidence provided by the parties and examined the provisions of the proposed agreement. The court found that, while there were some detriments for employees, the overall benefits provided by the agreement, such as increased wages and improved working conditions, outweighed these detriments. The court concluded that the agreement met the "better off overall test" and approved the application.

The final orders of the court were that the Subcontractors Tower Crane Riggers Enterprise Agreement 2020-2023 be approved and registered under section 233 of the Fair Work Act. The agreement was to be in effect from the date of registration and would apply to the employees of Select Cranes & Rigging Pty Ltd who were covered by the agreement.

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