Mercav Constructions Pty Ltd Summary

[2022] FWCA 789

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Mercav Constructions Pty Ltd

(AG2022/489)

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

Building, metal and civil construction industries
COMMISSIONER JOHNS	SYDNEY, 8 MARCH 2022

Application for approval of the Mercav 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 Mercav 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 Mercav 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 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 15 March 2022. The nominal expiry date of the Agreement is 30 June 2023.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Mercav Constructions Pty Ltd recently applied to the Fair Work Commission for approval of their Enterprise Agreement with the CFMEU (Victorian Construction and General Division) for the years 2020 to 2023. The application was made pursuant to section 231 of the Fair Work Act 2009. The nature of the dispute involved the procedural fairness of the application and the substantive fairness of the terms of the agreement. The court had to decide whether the application was procedurally fair and whether the terms of the agreement were substantively fair.

The primary legal issue was whether the enterprise agreement was fairly negotiated and if the application process was procedurally fair. The court considered whether there was a genuine attempt to negotiate in good faith, whether the parties had the capacity to negotiate, and whether the agreement was made in a manner that was procedurally fair. The court also had to examine whether the terms of the agreement were substantively fair, taking into account factors such as the nature of the industry, the bargaining power of the parties, and the economic circumstances of the enterprise.

The court determined that the application was procedurally fair, as there was evidence of genuine negotiation and capacity of the parties. The court further found that the terms of the agreement were substantively fair, as they were reasonable and balanced, taking into account the nature of the industry, the bargaining power of the parties, and the economic circumstances of the enterprise. The court approved the enterprise agreement, highlighting the importance of fair negotiations and the need for agreements to be substantively fair to benefit both parties and the broader industry.

Mercav Constructions Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established