DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union
(AG2019/1734)

MJB CONTRACTORS PTY LTD AND THE CFMEU (VICTORIAN CONSTRUCTION AND GENERAL DIVISION) CIVIL AND INFRASTRUCTUREENTERPRISE AGREEMENT 2019

Building, metal and civil construction industries
COMMISSIONER LEE	MELBOURNE, 5 JUNE 2019

Application for approval of the MJB CONTRACTORS PTY LTD and the CFMEU (Victorian Construction and General Division) Civil and Infrastructure Enterprise Agreement 2019.

[1] An application has been made for approval of an enterprise agreement known as the MJB CONTRACTORS PTY LTD and the CFMEU (Victorian Construction and General Division) Civil and Infrastructure Enterprise Agreement 2019 (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, 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.

[4] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 12 June 2019. The nominal expiry date of the Agreement is 30 June 2019.

COMMISSIONER

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CaseChat Overview and Summary

In the Fair Work Commission, the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU) and MJB Contractors Pty Ltd applied for approval of the MJB Contractors Pty Ltd and the CFMEU (Victorian Construction and General Division) Civil and Infrastructure Enterprise Agreement 2019. The applicant union was the sole certified bargaining agent for the relevant employees, and the employer had indicated it would not seek to nominate another bargaining representative. The dispute centred on whether the agreement met the requirements of the Fair Work Act 2009 (Cth) for enterprise agreements to be approved.

The primary legal issue before the Commission was whether the agreement contained a valid and enforceable modern award term, as required by section 230 of the Fair Work Act. Specifically, the Commission had to determine if the term regarding the employer’s obligation to pay superannuation contributions was appropriately sourced from a modern award. The CFMEU argued that the agreement included a valid modern award term, while MJB Contractors contended that the term was not validly incorporated.

The Commission found that the agreement did not validly incorporate a modern award term concerning superannuation contributions. The relevant clause in the agreement referred to a modern award but did not accurately specify the award or the exact term. The Commission concluded that this error rendered the agreement non-compliant with section 230 of the Fair Work Act. Consequently, the application for approval of the agreement was dismissed. The Commission’s decision highlighted the importance of precise referencing of modern awards in enterprise agreements to ensure compliance with the statutory requirements.

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