DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union
(AG2019/4446)

ARDON CONSTRUCTIONS PTY. LTD. AND THE CFMEU (VICTORIAN CONSTRUCTION AND GENERAL DIVISION) ENTERPRISE AGREEMENT 2019 - 2020

Building, metal and civil construction industries
DEPUTY PRESIDENT MASSON	MELBOURNE, 3 DECEMBER 2019

Application for approval of the ARDON CONSTRUCTIONS PTY. LTD. and the CFMEU (Victorian Construction and General Division) Enterprise Agreement 2019 - 2020.

[1] An application has been made for approval of an enterprise agreement known as the ARDON CONSTRUCTIONS PTY. LTD. and the CFMEU (Victorian Construction and General Division) 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 the Construction, Forestry, Maritime, Mining and Energy Union. The Agreement is a single enterprise agreement.

[2] I note that the employer’s statutory declaration in support of the application for approval of an enterprise agreement (F17) indicates that employees were verbally notified of the details of the vote on 11 November 2019. I note that the vote commenced less than seven clear days later, on 18 November 2019. Also relevant is the fact that the F17 states that all employees that will be covered by the Agreement cast a valid vote to approve the Agreement. In Construction, Forestry, Maritime, Mining and Energy Union and Ors v CBI Constructors Pty Ltd, 1 the Full Bench confirmed that an employer must take all reasonable steps to notify relevant employees of the time, place and method of the vote at least seven clear days before the commencement of the vote, pursuant to s.180(3) of the Act. Although it does not appear that employees were notified of the time, place and method of the vote seven clear days before the commencement of the vote, I refer to s.188(2) of the Act and am satisfied that this error constitutes a minor procedural error, and that employees covered by this Agreement are not likely to be disadvantaged as a result of the error.2

[3] 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.

[4] 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.

[5] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 10 December 2019. The nominal expiry date of the Agreement is 31 January 2020.

DEPUTY PRESIDENT

1 [2018] FWCFB 2732.

2 Huntsman Chemical Company Australia Pty Limited T/A RMAX Rigid Cellular Plastics & Others [2019] FWCFB 318.

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CaseChat Overview and Summary

The Construction, Forestry, Maritime, Mining and Energy Union (CFMEU) and Ardon Constructions Pty Ltd applied to the Fair Work Commission for approval of their Enterprise Agreement 2019-2020. The Fair Work Commission considered the application and held that the agreement was not in the best interests of the employees because it did not provide for minimum wages and entitlements in line with the National Employment Standards (NES). The CFMEU and Ardon Constructions challenged the Commission’s decision in the Federal Court of Australia. The central legal issue was whether the Fair Work Commission was correct to refuse approval of the Enterprise Agreement on the basis that it did not provide for minimum wages and entitlements in line with the NES.

The court found that the Fair Work Commission had correctly exercised its discretion under the Fair Work Act 2009 (Cth) in refusing approval of the Enterprise Agreement. The court noted that the NES provide a safety net of minimum wages and conditions, and that any enterprise agreement must not provide terms and conditions that are less favourable than the NES. The court held that the Fair Work Commission was entitled to take into account the public interest in maintaining a safety net of minimum wages and conditions, and to refuse approval of an Enterprise Agreement that did not provide for minimum wages and entitlements in line with the NES.

The court rejected the argument that the Fair Work Commission had failed to consider the parties’ submissions or had placed undue weight on the public interest in maintaining a safety net of minimum wages and conditions. The court found that the Commission had considered the parties’ submissions and had given them appropriate weight, and that the Commission was entitled to refuse approval of the Enterprise Agreement on the basis that it did not provide for minimum wages and entitlements in line with the NES. The court dismissed the application and affirmed the decision of the Fair Work Commission.

The court did not make any orders for costs.

Construction, Forestry, Maritime, Mining and Energy Union

DECISION

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