DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Hansen Yuncken Pty Ltd
(AG2020/3761)

HANSEN YUNCKEN PTY LTD AND THE CFMEU (VICTORIAN CONSTRUCTION AND GENERAL DIVISION) ENTERPRISE AGREEMENT 2020-2023

Building, metal and civil construction industries
DEPUTY PRESIDENT MASSON	MELBOURNE, 21 DECEMBER 2020

Application for approval of the HANSEN YUNCKEN PTY LTD 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 HANSEN YUNCKEN PTY LTD 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 Hansen Yuncken 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 28 December 2020. 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

Hansen Yuncken Pty Ltd, an employer, and the Construction, Forestry, Maritime, Mining and Energy Union (Victorian Construction and General Division) (CFMU), a trade union, sought approval of an enterprise agreement from the Fair Work Commission. The employer submitted that the agreement contained a clause which allowed for the payment of wages at a rate less than the relevant award for certain employees, and that this was necessary to accommodate the specific circumstances of their business. The union argued that the clause was necessary to facilitate flexibility in the workforce and to ensure the long-term sustainability of the business. The Fair Work Commission was required to determine whether the clause was fair and reasonable, and whether it complied with the relevant provisions of the Fair Work Act 2009.

The central legal issue before the Fair Work Commission was whether the clause allowing for the payment of wages at a rate less than the relevant award was fair and reasonable, and whether it complied with the requirements of the Fair Work Act. The Commission considered the nature of the business, the specific circumstances of the employer, and the bargaining power of the parties. The Commission also considered whether the clause was necessary to accommodate the specific circumstances of the business, and whether it provided for appropriate protections for employees.

The Fair Work Commission found that the clause allowing for the payment of wages at a rate less than the relevant award was fair and reasonable, and that it complied with the requirements of the Fair Work Act. The Commission found that the clause was necessary to accommodate the specific circumstances of the business, and that it provided for appropriate protections for employees. The Commission noted that the clause was subject to certain conditions and limitations, and that it was not intended to be used as a means of avoiding the payment of award wages. The Commission also noted that the clause was subject to review and negotiation, and that it could be varied or terminated by agreement between the parties.

The Fair Work Commission approved the enterprise agreement, including the clause allowing for the payment of wages at a rate less than the relevant award. The employer and the union were directed to take all necessary steps to give effect to the agreement, including by implementing the clause in accordance with its terms. The Commission also directed that the agreement be registered with the Fair Work Ombudsman, and that a copy of the agreement be provided to the relevant award. The Commission noted that the agreement would be subject to review and negotiation in the future, and that any changes to the agreement would need to be approved by the Commission.

Hansen Yuncken Pty Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established