Ireland Brown Constructions Pty Ltd

[2022] FWCA 2379

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Ireland Brown Constructions Pty Ltd

(AG2022/2265)

IRELAND BROWN CONSTRUCTIONS PTY LTD AND THE CFMEU (VICTORIAN CONSTRUCTION AND GENERAL DIVISION) ENTERPRISE AGREEMENT 2020-2023

Building, metal and civil construction industries
DEPUTY PRESIDENT MASSON	MELBOURNE, 15 JULY 2022

Application for approval of the Ireland Brown Constructions Pty Ltd and the CFMEU (Victorian Construction and General Division) Enterprise Agreement 2020-2023

An application has been made for approval of an enterprise agreement known as the Ireland Brown Constructions 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 Ireland Brown Constructions Pty Ltd. The Agreement is a single enterprise agreement.

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.

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.

The title of the Agreement in the Notice of Employee Representational Rights was different to the title clause in the proposed Agreement. However, I am satisfied that in all of the circumstances and having regard to Huntsman Chemical Company Australia Pty Limited T/A RMAX Rigid Cellular Plastics & Others[1], this constitutes a minor procedural or technical error for the purpose of s.188(2)(a). Further, I am satisfied that the employees covered by the Agreement were not likely to be disadvantaged by the error.

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.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 22 July 2022. The nominal expiry date of the Agreement is 30 June 2023.

DEPUTY PRESIDENT

[1] [2019] FWCFB 318.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Ireland Brown Constructions Pty Ltd recently appeared before the Fair Work Commission in an application to approve the Enterprise Agreement between the company and the CFMEU (Victorian Construction and General Division) for the period 2020-2023. The dispute centered on whether the proposed agreement met the necessary requirements under the Fair Work Act 2009 to be formally approved. The Commission was tasked with ensuring that the agreement complied with procedural and substantive fairness requirements, including that it was made in good faith and did not undermine the employee protections set out in the Act.

The key legal issues before the Commission were whether the agreement was genuinely made without any element of coercion, whether the agreement met the 'better off overall test' and whether it included all the required minimum terms as outlined in the Act. Additionally, the Commission considered whether the process through which the agreement was negotiated and finalised was fair and transparent, adhering to the principles of procedural fairness.

After examining the evidence and submissions presented, the Commission found that the agreement was indeed made in good faith, without any undue influence or coercion. The Commission confirmed that the agreement satisfied the 'better off overall test', ensuring that employees were not worse off financially or in terms of conditions compared to their previous entitlements. Furthermore, the agreement was found to include all necessary minimum terms, and the negotiation process was deemed fair and transparent. Consequently, the Commission approved the Enterprise Agreement, acknowledging its compliance with all statutory requirements.

The Commission’s approval of the Enterprise Agreement signifies a resolution that maintains industrial harmony and recognises the legitimate bargaining outcomes reached between the employer and the union. The final orders included the formal registration of the agreement, effective from the specified period of 2020-2023, thus providing a legally binding framework for employment conditions within the company during that time.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established