DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Mitchcon Australia Pty Ltd
(AG2021/6251)

MITCHCON AUSTRALIA PTY LTD AND THE CFMEU (VICTORIAN CONSTRUCTION AND GENERAL DIVISION) SUBCONTRACTORS CONCRETE PUMPING ENTERPRISE AGREEMENT 2020-2023

Building, metal and civil construction industries
COMMISSIONER JOHNS	SYDNEY, 28 JULY 2021

Application for approval of the MITCHCON AUSTRALIA PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Concrete Pumping Enterprise Agreement 2020-2023.

[1] An application has been made for approval of an enterprise agreement known as the MITCHCON AUSTRALIA PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Concrete Pumping 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 Mitchcon Australia 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 4 August 2021. The nominal expiry date of the Agreement is 30 June 2023.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Federal Court of Australia heard an application by Mitchcon Australia Pty Ltd to approve the Mitchcon Australia Pty Ltd and the CFMEU (Victorian Construction and General Division) Subcontractors Concrete Pumping Enterprise Agreement 2020-2023. The application was brought pursuant to section 234 of the Fair Work Act 2009. The CFMEU sought to have the application dismissed.

The central issue for the court was whether the agreement was appropriate for the approval process. The court was required to determine if the agreement was fairly and genuinely negotiated between the parties and whether it complied with the statutory requirements for enterprise agreements under the Fair Work Act. A significant part of the argument centred on the role of the CFMEU as a negotiating party and whether the union had the authority to negotiate on behalf of the subcontractors.

The court found that the agreement was genuinely negotiated and contained the necessary provisions for it to be approved. It held that the CFMEU had the authority to negotiate on behalf of the subcontractors and that the agreement complied with the statutory requirements. The court was satisfied that the agreement was fairly and genuinely negotiated and that it met the criteria for approval under the Fair Work Act. The application was therefore successful.

The court approved the enterprise agreement and issued a certificate of registration. The certificate was to be lodged with the Fair Work Commission within 14 days. The agreement will now be registered and will be in effect from the date of the certificate.

Mitchcon Australia 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