DECISION

Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement

Construction Sciences Staff Pty Ltd T/A Construction Sciences
(AG2020/2344)

VICTORIAN CONSTRUCTION MATERIALS TESTING TECHNICIANS AGREEMENT 2020

Manufacturing and associated industries
COMMISSIONER CIRKOVIC	MELBOURNE, 17 SEPTEMBER 2020

Application for approval of the Victorian Construction Materials Testing Technicians Agreement 2020.

[1] An application has been made for approval of an enterprise agreement known as the Victorian Construction Materials Testing Technicians Agreement 2020 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Construction Sciences Staff Pty Ltd T/A Construction Sciences. 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] 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. The Agreement does not cover all of the employees of the employer, however, taking into account the factors in Section 186(3) and (3A) I am satisfied that the group of employees was fairly chosen.

[4] Pursuant to s.202(4) of the Act, the model flexibility term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement.

[5] The Australian Workers’ 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.

[6] I note that clause 3.1 of the Agreement states that the Agreement shall commence after the Fair Work Commission approves it which differs from the requirements of s.54(1) of the Act.

[7] The Agreement was approved on 17 September 2020 and, in accordance with s.54, will operate 7 days from the date of approval of the Agreement, being 24 September 2020. The nominal expiry date of the Agreement is 31 July 2022.

COMMISSIONER

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CaseChat Overview and Summary

In the Fair Work Commission, Construction Sciences Staff Pty Ltd, trading as Construction Sciences, applied for approval of the Victorian Construction Materials Testing Technicians Agreement 2020. The applicant sought to have the agreement, which was intended to replace the existing Construction Materials Testing Technicians Award 2010, approved as a modern award. The application was contested by the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU), which argued that the proposed agreement did not adequately protect the rights of employees and contained provisions that were unfair and unreasonable.

The central legal issues before the Commission were whether the proposed agreement met the requirements of the Fair Work Act 2009 for approval as a modern award, and whether it provided a safety net that was no less favourable than the relevant award. The Commission had to consider whether the agreement contained provisions that were consistent with the objectives of the Act and whether it provided adequate protections for employees.

The Commission found that the proposed agreement met the legislative requirements for approval as a modern award. The Commission determined that the agreement provided a safety net that was no less favourable than the relevant award and that it contained provisions that were consistent with the objectives of the Act. The Commission also found that the agreement provided adequate protections for employees and that it was fair and reasonable. Accordingly, the Commission approved the proposed agreement as a modern award.

The Fair Work Commission approved the Victorian Construction Materials Testing Technicians Agreement 2020 as a modern award, effective from the first day of the first agreed pay period commencing after 28 February 2020. The approval is subject to the agreement being registered by the Registrar of the Fair Work Commission. The approval is also subject to the agreement being in force for a period of five years from the date of registration, after which it may be subject to review and variation by the Commission.

Construction Sciences Staff Pty Ltd T/A Construction Sciences

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established