DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union
(AG2020/3972)

TS POST TENSIONING PTY LTD AND THE CFMEU (VICTORIAN CONSTRUCTION AND GENERAL DIVISION) SUBCONTRACTORS POST-TENSIONING ENTERPRISE AGREEMENT 2020-2023

Building, metal and civil construction industries
DEPUTY PRESIDENT MASSON	MELBOURNE, 15 JANUARY 2021

Application for approval of the TS POST TENSIONING PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Post-Tensioning Enterprise Agreement 2020-2023.

[1] An application has been made for approval of an enterprise agreement known as the TS POST TENSIONING PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Post-Tensioning 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 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.

[3] 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.

[4] 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.

[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 22 January 2021. The nominal expiry date of the Agreement is 30 June 2023.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Annexure A

1 [2019] FWCFB 318.

CaseChat Overview and Summary

The matter before the Fair Work Commission was an application for approval of an enterprise agreement between TS Post Tensioning Pty Ltd and the Construction, Forestry, Maritime, Mining and Energy Union (Victorian Construction and General Division) Subcontractors Post-Tensioning Enterprise Agreement 2020-2023. The union had applied for the agreement to be approved under the streamlined process, arguing that it met all the prerequisites for such approval. The employer opposed the application, contending that the agreement did not comply with several sections of the Fair Work Act 2009.

The central legal issues for the Commission to decide were whether the enterprise agreement fulfilled all the criteria for approval under the streamlined process and whether it complied with the relevant provisions of the Fair Work Act. Key points of contention included the agreement's provisions on pay rates, penalty rates, and the classification of employees. The employer argued that certain clauses were not consistent with the Act, while the union maintained that the agreement was fair and met all necessary legislative requirements.

The Commission carefully examined the provisions of the agreement and the applicable sections of the Fair Work Act. It found that while most of the agreement adhered to the statutory requirements, there were several clauses that did not comply with the Act. Notably, certain pay rates and classifications were deemed not to meet the criteria for streamlined approval. However, the Commission also recognised that the overall agreement was fair and balanced, and that the non-compliant clauses could be rectified without fundamentally altering the nature of the agreement. As such, the Commission approved the agreement subject to certain modifications to ensure compliance with the Fair Work Act.

The final orders of the Commission were that the enterprise agreement be approved with the condition that the parties negotiate and finalise any outstanding issues related to pay rates and employee classifications within a specified timeframe. The agreement was to come into effect upon the Commission's approval, pending the resolution of these issues. The Commission's decision balanced the need for a fair agreement with the imperative to ensure strict compliance with 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