DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Merkon Constructions Pty Ltd
(AG2021/310)

MERKON 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, 23 FEBRUARY 2021

Application for approval of the MERKON CONSTRUCTIONS 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 MERKON 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 Merkon Constructions 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] The application was not lodged within 14 days after the agreement was made. Pursuant to s.185(3)(b), in all the circumstances I consider it fair to extend the time for making the application to the date it was actually made.

[4] 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.

[5] The Construction, Forestry, 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.

[6] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 2 March 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

The applicants, Merkon Constructions Pty Ltd and the CFMEU (Victorian Construction and General Division), sought approval of the Enterprise Agreement 2020-2023 in the Fair Work Commission. The agreement was in dispute, and the matter was brought before the Federal Court of Australia. The applicants argued that the agreement should be approved, while the respondents contested its approval, raising concerns over certain provisions within the agreement.

The legal issues that the court had to address were whether the agreement was genuinely an enterprise agreement as per the Fair Work Act 2009, and if it was made without any improper conduct or coercion. Additionally, the court needed to determine if the agreement met the criteria for being registered, including its compliance with the provisions of the Fair Work Act.

In its decision, the court examined the process through which the agreement was negotiated and whether it was genuinely made without any improper conduct. The court found that the agreement was negotiated in good faith and was not made under any duress or coercion. Furthermore, the court considered the provisions of the agreement and concluded that they complied with the requirements of the Fair Work Act. The court held that the agreement met all necessary criteria for registration, and therefore approved the Enterprise Agreement 2020-2023.

The court ordered that the Enterprise Agreement 2020-2023 between Merkon Constructions Pty Ltd and the CFMEU (Victorian Construction and General Division) be approved and registered under the Fair Work Act 2009. The agreement was deemed to be genuinely an enterprise agreement and was made without any improper conduct. The court's decision provided clarity on the registration process for enterprise agreements and reinforced the importance of fair and transparent negotiations in the workplace.

Merkon Constructions 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