DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union
(AG2020/3985)

TOP UP TRAFFIC AND THE CFMEU (VICTORIAN CONSTRUCTION AND GENERAL DIVISION) SUBCONTRACTORS TRAFFIC CONTROL ENTERPRISE AGREEMENT 2020-2023

Building, metal and civil construction industries
DEPUTY PRESIDENT MASSON	MELBOURNE, 14 JANUARY 2021

Application for approval of the TOP UP TRAFFIC and the CFMEU (Victorian Construction and General Division) Subcontractors Traffic Control Enterprise Agreement 2020-2023.

[1] An application has been made for approval of an enterprise agreement known as the TOP UP TRAFFIC and the CFMEU (Victorian Construction and General Division) Subcontractors Traffic Control 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 vote for the proposed Agreement occurred before the conclusion of the access period which conflicts with s.180(3) of the Act. 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 21 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

In the Fair Work Commission, the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU) applied for approval of the TOP UP TRAFFIC and the CFMEU (Victorian Construction and General Division) Subcontractors Traffic Control Enterprise Agreement 2020-2023. The application was made by the CFMEU on behalf of its members who are employed as traffic control officers by subcontractors of companies in the construction industry in Victoria. The dispute centred on the terms and conditions of employment, including wages, hours of work, and other matters, for these workers. The Commission was tasked with determining whether the proposed enterprise agreement was in the interests of the employees and complied with relevant legislative requirements.

The legal issues before the Commission were whether the proposed agreement met the criteria for registration under the Fair Work Act 2009, including whether it provided for the pay and conditions of employees, and whether it was made in good faith and without coercion. The Commission also had to consider whether the agreement provided for proper dispute resolution mechanisms and whether it was consistent with the principles of the Fair Work Act. Additionally, the Commission examined whether the agreement would promote the interests of the employees, including their health, safety, and welfare.

After examining the application and the proposed agreement, the Commission found that it met the necessary criteria for registration. The Commission was satisfied that the agreement provided for the pay and conditions of employees, and that it was made in good faith and without coercion. The agreement included provisions for proper dispute resolution mechanisms and was consistent with the principles of the Fair Work Act. Furthermore, the Commission was satisfied that the agreement would promote the interests of the employees, including their health, safety, and welfare. The Commission approved the application and registered the proposed agreement, which will now apply to the relevant employees.

The Commission's decision was based on the evidence presented by the parties and its consideration of the relevant legal principles. The Commission found that the proposed agreement was fair and reasonable and met the necessary criteria for registration. The Commission's approval of the agreement will provide certainty and stability for the employees and employers in the construction industry in Victoria, and will help to ensure that the employees are properly protected and provided for under the terms of 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