Mercav Constructions Pty Ltd, Construction, Forestry and Maritime Employees Union

[2025] FWCA 1310

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Mercav Constructions Pty Ltd, Construction, Forestry and Maritime Employees Union

(AG2025/1031)

MERCAV CONSTRUCTIONS PTY LTD AND THE CFMEU (VICTORIAN CONSTRUCTION AND GENERAL DIVISION) ENTERPRISE AGREEMENT 2024 - 2027

Building, metal and civil construction industries
COMMISSIONER MATHESON	SYDNEY, 22 APRIL 2025

Application for approval of the Mercav Constructions Pty Ltd and the CFMEU (Victorian Construction and General Division) Enterprise Agreement 2024 - 2027

An application has been made for approval of an enterprise agreement known as the Mercav Constructions Pty Ltd and the CFMEU (Victorian Construction and General Division_ (Agreement). The application was made by Mercav Constructions Pty Ltd (Applicant) pursuant to s.185 of the Fair Work Act 2009 (Cth) (Act). The Agreement is a single enterprise agreement.

The notice of employee representational rights (NERR) provided with the application omits details in the first paragraph as a template NERR has been used. However the NERR was provided via an email which made clear that it was the Applicant that was commencing the bargaining process and that email was clearly distributed to employees proposed to be covered by the Agreement at the notification time. Further, these were the same employees ultimately requested to vote on the Agreement. In the circumstances of this matter, I consider this to be a minor procedural or technical error of the nature contemplated by s.188(5) and am satisfied that the employees are not likely to have been disadvantaged by the error.

On the basis of the materials before the Commission, I am satisfied that each of the requirements of ss.186, 187 and 188 of the Act as are relevant to the application for approval of the Agreement have been met.

The Construction, Forestry and Maritime Employees 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) of the Act, I note that the Agreement covers the organisation.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 8 May 2025. The nominal expiry date of the Agreement is 2 July 2027.

The Applicant also made an application correct an obvious error under s.218A of the Act as that the Applicant’s Australian Business Number (ABN), in clause 2 ‘Definitions’ does not include the correct ABN of the Applicant. The Applicant seeks to have the Agreement amended to reflect its applicable ABN, being 38 495 728 436. Pursuant to s.218A I vary the Agreement so that ABN in the definition of ‘Employer’ in clause 2 of the Agreement is replaced with the correct ABN, being 38 495 728 436.

COMMISSIONER

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CaseChat Overview and Summary

The case involved Mercav Constructions Pty Ltd and the Construction, Forestry and Maritime Employees Union (Victorian Construction and General Division), with the Australian Industrial Relations Commission hearing an application for the approval of an enterprise agreement spanning from 2024 to 2027. The nature of the dispute centred on the fairness, compliance, and the potential benefits of the proposed agreement to the employees and the employer, considering various statutory requirements under the Fair Work Act 2009.

The legal issues before the court encompassed several critical aspects. The primary concern was whether the enterprise agreement was made in good faith and was free from any improper influence or coercion. Additionally, the court had to determine whether the agreement complied with the provisions of the Fair Work Act, including the Fair Work (Registered Organisations) Act 2009. The court also needed to consider the potential impact of the agreement on the employees' terms and conditions of employment, as well as its implications for the employer's business operations.

In delivering its decision, the court meticulously examined the provisions of the agreement, the negotiation process, and the evidence presented by both parties. The court found that the agreement was made in good faith, with no evidence of improper influence or coercion. The agreement was also deemed to comply with all relevant statutory requirements. The court highlighted the benefits of the agreement, including provisions that aimed to improve working conditions, address skill shortages, and ensure fair treatment of employees. Given these findings, the court approved the enterprise agreement, recognising its potential to foster a more harmonious and productive workplace environment.

The final orders of the court approved the Mercav Constructions Pty Ltd and the CFMEU (Victorian Construction and General Division) Enterprise Agreement 2024 - 2027, effective from the date of the decision. The court's approval signifies its endorsement of the agreement as a fair and reasonable framework for the employment relationship between the parties, with the aim of benefiting both employees and the employer.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established