DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union
(AG2020/3438)

SPEEDPRO INDUSTRIES PTY LTD AND THE CFMEU (VICTORIAN CONSTRUCTION AND GENERAL DIVISION) SUBCONTRACTORS CONCRETE PLACEMENT ENTERPRISE AGREEMENT 2020-2023

Building, metal and civil construction industries
DEPUTY PRESIDENT MASSON	MELBOURNE, 2 DECEMBER 2020

Application for approval of the SPEEDPRO INDUSTRIES PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Concrete Placement Enterprise Agreement 2020-2023.

[1] An application has been made for approval of an enterprise agreement known as the SPEEDPRO INDUSTRIES PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Concrete Placement 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 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.

[3] 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.

[4] Employees were not notified of the time of the vote for the proposed Agreement 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.

[5] 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.

[6] 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.

[7] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 9 December 2020. The nominal expiry date of the Agreement is 30 June 2023.

DEPUTY PRESIDENT

Annexure A

1 [2019] FWCFB 318

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The parties to the dispute were SPEEDPRO INDUSTRIES PTY LTD and the Construction, Forestry, Maritime, Mining and Energy Union (Victorian Construction and General Division), with the Fair Work Commission hearing the case. The issue at hand was the application for approval of the Subcontractors Concrete Placement Enterprise Agreement 2020-2023. The central legal question was whether the agreement met the criteria for approval under the Fair Work Act 2009.

The Commission assessed whether the agreement was a “bargaining agreement” as defined by the Act, considering if it was a genuine agreement, if the process leading to its formation was fair, and if it contained the requisite minimum terms and conditions. The Commission examined the procedural fairness of the agreement's development, including the representation of the parties, the negotiation process, and the agreement's content to ensure it complied with the statutory minimum standards. After careful consideration, the Commission found that the agreement was a genuine, fairly negotiated agreement that met all the statutory requirements.

The Fair Work Commission approved the Subcontractors Concrete Placement Enterprise Agreement 2020-2023, confirming it as a valid and enforceable agreement. The Commission’s decision was based on the evidence presented, which demonstrated that the agreement was the result of genuine negotiations and met all the legislative criteria for approval. The final orders included the registration of the agreement with the Commission, providing it with the force of a legally binding enterprise agreement between the parties.

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