DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union
(AG2020/3833)

AUSTRALIAN 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, 14 JANUARY 2021

Application for approval of the AUSTRALIAN 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 AUSTRALIAN 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 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

The applicant, Australian Post-Tensioning Pty Ltd, sought approval of an enterprise agreement with the Construction, Forestry, Maritime, Mining and Energy Union (Victorian Construction and General Division). The dispute was heard in the Fair Work Commission, where the Commission's primary role was to ensure the agreement met the necessary requirements under the Fair Work Act 2009. The agreement in question was for subcontractors in the post-tensioning sector, covering a period from 2020 to 2023.

The legal issues before the Commission involved assessing whether the agreement complied with the various statutory provisions of the Fair Work Act, including ensuring it met the "better off overall test" and the "no unprotected workers test." Additionally, the Commission had to determine if the agreement was free from any illegality and whether it adhered to the principles of procedural fairness and good faith bargaining. The Union argued that certain provisions of the agreement were unfair and did not adequately protect the rights of the workers.

The Fair Work Commission found that the agreement largely complied with the statutory requirements. It noted that the "better off overall test" was satisfied, as the agreement provided benefits to the majority of the employees that outweighed any potential detriments. The "no unprotected workers test" was also met, ensuring that all workers were covered by the agreement. The Commission concluded that the agreement was fair and met all the necessary legal standards, thereby granting approval for the enterprise agreement.

In its decision, the Commission approved the Australian Post-Tensioning Pty Ltd and the CFMEU (Victorian Construction and General Division) Subcontractors Post-Tensioning Enterprise Agreement 2020-2023. The agreement was deemed to be fair and met all the legal requirements under the Fair Work Act, thereby ensuring that the rights and protections of the workers were adequately safeguarded.

Construction, Forestry, Maritime, Mining and Energy Union

DECISION

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Background to the litigation

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Legal Principle Established