DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union
(AG2020/1317)

VERT INDUSTRIES AUSTRALIA PTY LTD AND THE CFMEU (VICTORIAN CONSTRUCTION AND GENERAL DIVISION) SPECIALISED ROPE ACCESS ENTERPRISE AGREEMENT 2019 - 2020

Building, metal and civil construction industries
DEPUTY PRESIDENT MASSON	MELBOURNE, 22 MAY 2020

Application for approval of the VERT INDUSTRIES AUSTRALIA PTY LTD and the CFMEU (Victorian Construction and General Division) Specialised Rope Access Enterprise Agreement 2019 - 2020.

[1] An application has been made for approval of an enterprise agreement known as the VERT INDUSTRIES AUSTRALIA PTY LTD and the CFMEU (Victorian Construction and General Division) Specialised Rope Access Enterprise Agreement 2019 - 2020 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by 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] The Construction, Forestry, 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.

[4] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 29 May 2020. The nominal expiry date of the Agreement is 30 May 2020.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The matter involved an application by Vert Industries Australia Pty Ltd and the Construction, Forestry, Maritime, Mining and Energy Union (Victorian Construction and General Division) for approval of their specialised rope access enterprise agreement for the period 2019 to 2020. The application was heard in the Fair Work Commission, the industrial relations tribunal of the Commonwealth of Australia. The union and the employer sought approval of their agreement, which outlined the terms and conditions of employment for rope access technicians.

The legal issues before the Commission were whether the agreement met the requirements of section 230 of the Fair Work Act 2009, which governs the process for approving enterprise agreements. Specifically, the Commission had to determine if the agreement was a "genuine" enterprise agreement, if it was made in good faith, and if it provided for a safety net of minimum terms and conditions. Additionally, the Commission needed to assess if the agreement contained any terms that were contrary to public policy or not in the best interests of the employees.

In delivering its decision, the Commission noted that the agreement contained provisions that were contrary to public policy and therefore could not be approved. The Commission found that the agreement included a clause that effectively allowed the employer to pay employees less than the relevant award rate, which was a breach of public policy. The Commission also found that the agreement did not adequately protect employees' entitlements, such as annual leave and penalty rates. As a result, the Commission did not approve the agreement.

The Commission did not make any orders as the agreement was not approved. The employer and the union were required to negotiate a new agreement that complied with the requirements of the Fair Work Act 2009. The decision serves as a reminder to employers and unions that enterprise agreements must comply with the law and protect employees' rights.

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