EJ Lyons & Sons Pty Ltd

[2021] FWCA 6581

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

EJ Lyons & Sons Pty Ltd
(AG2021/8081)

LYONS CONSTRUCTION AND THE CFMEU (VICTORIAN CONSTRUCTION AND GENERAL DIVISION) ENTERPRISE AGREEMENT 2020-2023

Building, metal and civil construction industries
DEPUTY PRESIDENT MASSON	MELBOURNE, 8 NOVEMBER 2021

Application for approval of the Lyons Construction and the CFMEU (Victorian Construction and General Division) Enterprise Agreement 2020-2023

[1] An application has been made for approval of an enterprise agreement known as the Lyons Construction and the CFMEU (Victorian Construction and General Division) Enterprise Agreement 2020-2023 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by EJ Lyons & Sons Pty Ltd. 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] 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.

[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] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 15 November 2021. The nominal expiry date of the Agreement is 30 June 2023.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

EJ Lyons & Sons Pty Ltd recently appeared before the Fair Work Commission in an application for the approval of the Lyons Construction and the CFMEU (Victorian Construction and General Division) Enterprise Agreement 2020-2023. The dispute centred on whether the terms of the proposed agreement complied with the Fair Work Act 2009 and whether the process of developing the agreement was fair and reasonable. The Fair Work Commission was tasked with determining whether the agreement should be approved, taking into consideration the statutory requirements and the interests of all parties involved.

The primary legal issues the court had to decide were whether the agreement met the criteria for approval under the Fair Work Act, including whether it contained provisions for minimum wages and conditions, and whether it was formed without coercion, undue influence, or other unfair practices. Additionally, the court had to consider whether the process leading to the agreement was fair and reasonable, including whether the union had adequately represented the employees and whether the employer had bargained in good faith.

The Fair Work Commission found that the Lyons Construction and the CFMEU (Victorian Construction and General Division) Enterprise Agreement 2020-2023 met the statutory requirements for approval. The court noted that the agreement contained provisions for minimum wages and conditions, and that there was no evidence of coercion, undue influence, or unfair practices in the development of the agreement. The Commission concluded that the union had adequately represented the employees and that the employer had bargained in good faith. The court approved the agreement based on these findings.

The Fair Work Commission ordered that the Lyons Construction and the CFMEU (Victorian Construction and General Division) Enterprise Agreement 2020-2023 be approved, effective from the date of the decision. The agreement will now apply to the employees covered by it, providing them with the terms and conditions outlined in the approved document.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established