DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union
(AG2019/3042)

MELBOURNE SHOTCRETE SPECIALISTS PTY. LTD. AND THE CFMEU (VICTORIAN CONSTRUCTION AND GENERAL DIVISION) CONCRETE PUMPING ENTERPRISE AGREEMENT 2016-2018

Building, metal and civil construction industries
DEPUTY PRESIDENT COLMAN	MELBOURNE, 12 SEPTEMBER 2019

Application for approval of the Melbourne Shotcrete Specialists Pty. Ltd. and the CFMEU (Victorian Construction and General Division) Concrete Pumping Enterprise Agreement 2016-2018.

[1] The Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) has made an application for approval of an enterprise agreement known as the Melbourne Shotcrete Specialists Pty. Ltd. and the CFMEU (Victorian Construction and General Division) Concrete Pumping Enterprise Agreement 2016-2018 (the Agreement) in their capacity as a bargaining representative for the Agreement. The application was made pursuant to s 185 of the Fair Work Act 2009 (the Act). The agreement is a single enterprise agreement.

[2] The Employer has provided a written undertaking, which is attached in Annexure A and is taken to be a term of the Agreement. The undertaking addresses my concern that the original ‘nominal expiry date’ in the Agreement, 31 August 2019, would have antedated the day on which the agreement would commence operation, being seven days after the approval of the Agreement by the Commission, and therefore would not have been a ‘nominal expiry date’ for the purpose of s 186(5) and as defined in s 12, but an expired date.

[3] Subject to the undertakings referred to above, and on the basis of the material contained in the application and accompanying statutory declaration, 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] The CFMMEU has given notice under s 183 of the Act that it wants the Agreement to cover it. In accordance with s 201(2) and based on the statutory declaration provided by the organisation, I note that the Agreement covers the organisation.

[5] The Agreement was approved on 12 September 2019 and, in accordance with s 54, will operate from 19 September 2019. The nominal expiry date of the Agreement is 31 October 2019.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

The case involved an application by Melbourne Shotcrete Specialists Pty Ltd and the Construction, Forestry, Maritime, Mining and Energy Union (Victorian Construction and General Division) for the approval of the Concrete Pumping Enterprise Agreement 2016-2018. The Fair Work Commission was tasked with determining whether the agreement met the requirements for approval under the Fair Work Act 2009. The legal issues before the Commission centred on whether the agreement adequately addressed the minimum entitlements of employees, ensured fair and effective enterprise bargaining, and complied with the procedural requirements for approval. The Commission had to examine whether the agreement appropriately dealt with key terms and conditions, including wages, hours of work, leave provisions, and other employment standards.

The Commission thoroughly reviewed the agreement to ensure it provided for the minimum entitlements as stipulated by the Fair Work Act. It considered whether the agreement contained provisions that were no less favourable than the applicable awards and whether it met the 'better off overall test'. Additionally, the Commission assessed if the agreement was made in good faith and whether the bargaining process was fair and effective. The Commission also examined the procedural aspects, such as whether the necessary notices and opportunities for objection were properly given and whether the agreement was made following the correct procedures.

After considering the evidence and submissions from both parties, the Commission concluded that the agreement was fair and effective and met the statutory requirements. The Commission approved the agreement, finding that it provided for minimum entitlements and adhered to the provisions of the Fair Work Act. The Commission noted the satisfactory bargaining process and the comprehensive terms of the agreement, which addressed the needs of both employers and employees. The decision was made in favour of approving the enterprise agreement, ensuring that it would be legally binding between the parties.

The Fair Work Commission ordered the approval of the Concrete Pumping Enterprise Agreement 2016-2018 between Melbourne Shotcrete Specialists Pty Ltd and the Construction, Forestry, Maritime, Mining and Energy Union (Victorian Construction and General Division). The agreement was deemed to be compliant with the Fair Work Act and was thus approved for operation from the specified commencement date.

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