DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union
(AG2021/203)

OCC SERVICES PTY LTD TAS OCC LABOUR SERVICES AND THE CFMEU (VICTORIAN CONSTRUCTION AND GENERAL DIVISION) SUBCONTRACTORS LABOUR HIRE ENTERPRISE AGREEMENT 2020-2023

Building, metal and civil construction industries
COMMISSIONER LEE	MELBOURNE, 16 FEBRUARY 2021

Application for approval of the OCC SERVICES PTY LTD Tas OCC LABOUR SERVICES and the CFMEU (Victorian Construction and General Division) Subcontractors Labour Hire Enterprise Agreement 2020-2023.

[1] An application has been made for approval of an enterprise agreement known as the OCC SERVICES PTY LTD Tas OCC LABOUR SERVICES and the CFMEU (Victorian Construction and General Division) Subcontractors Labour Hire 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.

COMMISSIONER

1 [2019] FWCFB 318.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the Fair Work Commission, the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU) applied for approval of the OCC Services Pty Ltd Tas OCC Labour Services and the CFMEU (Victorian Construction and General Division) Subcontractors Labour Hire Enterprise Agreement 2020-2023. The application for approval was opposed by OCC Services Pty Ltd Tas OCC Labour Services. The dispute before the Commission concerned the validity of the proposed enterprise agreement and its terms and conditions. The primary issue was whether the agreement complied with the requirements of the Fair Work Act 2009, particularly in relation to the bargaining process and the content of the agreement.

The Commission examined the evidence regarding the bargaining process to determine if it was conducted in good faith and if the parties had genuinely attempted to negotiate in that spirit. The Commission also considered whether the agreement contained terms and conditions that were consistent with the provisions of the Fair Work Act and did not undermine the safety net of minimum entitlements. The CFMEU argued that the agreement was the result of genuine negotiations and that it provided for fair and reasonable terms and conditions of employment. OCC Services Pty Ltd Tas OCC Labour Services, on the other hand, contended that the bargaining process was flawed and that certain provisions of the agreement were unfair and contrary to the objectives of the Fair Work Act.

After reviewing the evidence and the submissions from both parties, the Commission concluded that the agreement was the product of genuine negotiations and that it contained terms and conditions that were consistent with the Fair Work Act. The Commission found that the bargaining process was conducted in good faith, and the agreement did not undermine the safety net of minimum entitlements. Consequently, the Commission approved the proposed enterprise agreement. As a result, the OCC Services Pty Ltd Tas OCC Labour Services and the CFMEU (Victorian Construction and General Division) Subcontractors Labour Hire Enterprise Agreement 2020-2023 is now registered and in effect.

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