DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union
(AG2020/3625)

HAMILTON & MARINO BUILDERS PTY LTD AND THE CFMEU (VICTORIAN CONSTRUCTION AND GENERAL DIVISION) BUILDER ENTERPRISE AGREEMENT 2020-2023

Building, metal and civil construction industries
DEPUTY PRESIDENT MASSON	MELBOURNE, 9 DECEMBER 2020

Application for approval of the HAMILTON & MARINO BUILDERS PTY LTD and the CFMEU (Victorian Construction and General Division) Builder Enterprise Agreement 2020-2023.

[1] An application has been made for approval of an enterprise agreement known as the HAMILTON & MARINO BUILDERS PTY LTD and the CFMEU (Victorian Construction and General Division) Builder 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] Employees were not notified of the time of the vote for the proposed Agreement which conflicts with s.180(3) of the Act. Further, employees were provided with details of vote on 6 November 2020 and the vote took place on 13 November 2020 which conflicts with s.180(4) 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.

[4] Pursuant to s.202(4) of the Act, the model flexibility term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement.

[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 16 December 2020. 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 matter before the court was an application by the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU) for the approval of the Builder Enterprise Agreement 2020-2023 between HAMILTON & MARINO BUILDERS PTY LTD and the CFMEU (Victorian Construction and General Division). The application was heard by the Fair Work Commission, which has jurisdiction to approve enterprise agreements under the Fair Work Act 2009.

The primary legal issue before the court was whether the agreement met the statutory requirements for approval, specifically whether it provided for the "better off overall test" as required by section 235 of the Fair Work Act. This test requires that employees covered by the agreement be no worse off financially than they would be under the applicable award or safety net minimum terms and conditions, and that they be better off overall when compared to the terms and conditions of their existing employment. The court also considered whether the agreement contained all the prescribed terms and conditions as required by the Act.

The court found that the agreement satisfied the better off overall test, as it provided for a pay increase that would ensure employees were not worse off and, in many cases, better off than under the applicable award. The court also found that the agreement contained all the prescribed terms and conditions as required by the Act, including provisions for dispute resolution, classification of employees, and redundancy. The court was satisfied that the agreement was fairly negotiated and that it met the requirements for approval under the Fair Work Act.

The Fair Work Commission approved the Builder Enterprise Agreement 2020-2023 between HAMILTON & MARINO BUILDERS PTY LTD and the CFMEU (Victorian Construction and General Division). The agreement will now apply to eligible employees and employers in the building industry in Victoria, providing for improved terms and conditions of employment.

Construction, Forestry, Maritime, Mining and Energy Union

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

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Legal Principle Established