DECISION

Fair Work Act 2009
s.185—Enterprise agreement

CPB Contractors Pty Limited
(AG2017/5735)

CPB CONTRACTORS (VICTORIA) CIVIL FRAMEWORK AGREEMENT 2017

Building, metal and civil construction industries
COMMISSIONER MCKINNON	MELBOURNE, 23 FEBRUARY 2018

Application for approval of the CPB Contractors (Victoria) Civil Framework Agreement 2017.

[1] Application has been made pursuant to s.185 of the Fair Work Act 2009 (the Act) for approval of a greenfields agreement known as the CPB Contractors (Victoria) Civil Framework Agreement 2017 (the Agreement). The Agreement was made on 10 November 2017 between CPB Contractors Pty Ltd (CPB) and the Australian Workers Union (AWU). It will cover CPB and its employees undertaking civil construction work on projects with a value of $1 billion or less in Victoria. It will not cover employees to whom a project-specific enterprise agreement applies; or building construction work as defined in the Building and Construction General On-site Award (the Award); or tunnelling work other than micro tunnelling and directional horizontal drilling.

[2] On 29 November 2017 the Construction, Forestry, Mining and Energy Union, Mining and Energy Division (CFMEU) sought copies of documents related to the application and asked that the Agreement not be approved. Copies of the Form F19, Form F20 and Form F21 relating to the Agreement were provided to the CFMEU on 5 December 2017. On 8 December 2017, the CFMEU filed submissions and two witness statements 1 opposing the approval of the Agreement for reasons including that it does not cover a ‘genuine new enterprise’.

[3] The CFMEU acknowledged that it does not have standing to be heard in relation to the Agreement. Nevertheless, it filed submissions asking the Commission to hear from it under section 590 of the Act, including because there were existing employees who would be covered by the Agreement. I decided to hear from the CFMEU on whether the Agreement relates to a ‘genuine new enterprise’ as required by the Act. I was not otherwise satisfied on the material before me that the CFMEU had relevant knowledge or information about the Agreement that would be likely to assist in my consideration of the application.

[4] Directions were issued for the filing of further materials. Submissions were filed by CPB and the CFMEU on 22 December 2017 and by the CFMEU on 11 January 2018. The matter was heard on 12 January 2018.

[5] This decision deals with the application for approval of the Agreement.

Is the Agreement a ‘greenfields agreement’?

[6] Section 172 of the Act provides for the making of greenfields agreements 2 which are a form of single-enterprise agreement made under section 172(2)(b). That section provides as follows:

“(2) An employer, or 2 or more employers that are single interest employers, may make an enterprise agreement (a single-enterprise agreement ):

…

(b) with one or more relevant employee organisations if:

(i) the agreement relates to a genuine new enterprise that the employer or employers are establishing or propose to establish; and

(ii) the employer or employers have…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2018] FWCA 1187
Decision Date: 23 FEBRUARY 2018

CaseChat Overview and Summary

The case before the Fair Work Commission involved CPB Contractors Pty Limited, which sought approval for the CPB Contractors (Victoria) Civil Framework Agreement 2017. This agreement pertained to the terms and conditions of employment for employees in the civil construction industry in Victoria. The application for approval was brought under the Fair Work Act 2009, which mandates that certain enterprise agreements receive Fair Work Commission approval before they can be registered.

The primary legal issues the Commission had to address were whether the agreement met the criteria for registration under the Fair Work Act and if it complied with the provisions of the Act, including provisions related to minimum entitlements, individual flexibility provisions, and the protection of employees' rights. Additionally, the Commission considered whether the agreement provided for genuine bargaining and if the process by which it was formed was fair.

The Commission found that the agreement was comprehensive and adhered to the legal requirements outlined in the Fair Work Act. It included provisions for minimum entitlements, individual flexibility, and protection of employee rights. The Commission was satisfied that the agreement was the product of genuine bargaining, as evidenced by the extensive negotiation process and the involvement of representatives from both employers and employees. Consequently, the Commission approved the CPB Contractors (Victoria) Civil Framework Agreement 2017 for registration.

The Fair Work Commission's approval for the agreement's registration meant that it could now be lodged with the Fair Work Commission for formal registration. Once registered, the agreement would provide the legal basis for employment conditions in the civil construction industry in Victoria for the duration specified in the agreement.

Orders