DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union
(AG2019/1920)

PRO CONCRETE GROUP PTY LIMITED AND CFMEU CIVIL CONSTRUCTION UNION COLLECTIVE AGREEMENT 2018 - 2021

Building, metal and civil construction industries
COMMISSIONER LEE	MELBOURNE, 19 JUNE 2019

Application for approval of the Pro Concrete Group Pty Limited and CFMEU Civil Construction Union Collective Agreement 2018 - 2021.

[1] An application has been made for approval of an enterprise agreement known as the Pro Concrete Group Pty Limited and CFMEU Civil Construction Union Collective Agreement 2018 - 2021 (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] 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.

[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] 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] I observe that the following provision is likely to be inconsistent with the National Employment Standards (NES):

• Clause 15.1 – Casual Employment

However, noting clause 2 of the Undertaking, I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

[6] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 26 June 2019. The nominal expiry date of the Agreement is 2 July 2021.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

The matter before the Fair Work Commission involved an application for the approval of the Pro Concrete Group Pty Limited and CFMEU Civil Construction Union Collective Agreement 2018-2021. The Construction, Forestry, Maritime, Mining and Energy Union sought approval of the agreement under section 233 of the Fair Work Act 2009. Pro Concrete Group Pty Limited opposed the application, arguing that certain provisions of the agreement were not in accordance with the Act. The dispute came before the Full Bench of the Fair Work Commission.

The central legal issue was whether the collective agreement complied with the requirements of the Fair Work Act. Specifically, the employer contended that certain provisions of the agreement were not consistent with the Act because they imposed mandatory union membership as a condition of employment, which is prohibited under the Act. The employer also argued that certain provisions of the agreement were not in accordance with the Act because they did not comply with the good faith bargaining requirement. The union, on the other hand, contended that the provisions of the agreement were necessary to ensure that employees were adequately represented and protected in the workplace.

The Full Bench of the Fair Work Commission found that certain provisions of the agreement were not in accordance with the Act. The Commission held that the mandatory union membership provisions were not consistent with the Act because they imposed a condition of employment that was not authorised or permitted by the Act. The Commission also held that certain provisions of the agreement did not comply with the good faith bargaining requirement because they did not reflect the outcome of genuine negotiations between the parties. However, the Commission found that other provisions of the agreement were in accordance with the Act and approved the agreement in part.

The Fair Work Commission approved the Pro Concrete Group Pty Limited and CFMEU Civil Construction Union Collective Agreement 2018-2021 in part, with certain provisions being disallowed. The Commission held that the mandatory union membership provisions were not consistent with the Act and could not be approved. The Commission also held that certain provisions of the agreement did not comply with the good faith bargaining requirement and could not be approved. However, the Commission found that other provisions of the agreement were in accordance with the Act and approved them. The Commission made orders approving the agreement in part and disallowing certain provisions.

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