Construction, Forestry, Maritime, Mining and Energy Union

[2019] FWCA 635

[2019] FWCA 635

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union
(AG2018/5915)

ELLIOT'S CRANE HIRE PTY LTD AND CFMEU ENTERPRISE AGREEMENT 2018

Building, metal and civil construction industries
COMMISSIONER LEE	MELBOURNE, 4 FEBRUARY 2019

Application for approval of the Elliot's Crane Hire Pty Ltd and CFMEU Enterprise Agreement 2018.

[1] An application has been made for approval of an enterprise agreement known as the Elliot’s Crane Hire Pty Ltd and CFMEU Enterprise Agreement 2018 (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, 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 provisions are likely to be inconsistent with the National Employment Standards (NES):

•  Clause 27.1 - Annual Leave

•  Clause 27.3 - Community Service Leave

•  Clause 33.4 - Abandonment of 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 lodged contained errors at Clause 18.6. On 31 January 2019, the Applicant filed an amended version of page 16 of the Agreement pursuant to s.586 of the Act. I am satisfied that the correction should be made and that it is appropriate to do so pursuant to s.586 of the Act.

[7] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 11 February 2019. The nominal expiry date of the Agreement is 25 February 2021.

COMMISSIONER

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Annexure A