DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Monaco Hickey Pty Ltd
(AG2021/5384)

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

Building, metal and civil construction industries
DEPUTY PRESIDENT MASSON	MELBOURNE, 9 JUNE 2021

Application for approval of the MONACO HICKEY PTY LTD 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 MONACO HICKEY PTY LTD 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 Monaco Hickey 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 16 June 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 applicant, Monaco Hickey Pty Ltd, sought the court's approval for the Monaco Hickey Pty Ltd the CFMEU (Victorian Construction and General Division) Enterprise Agreement 2020-2023. The dispute arose from the application's failure to comply with certain procedural requirements under the Fair Work Act 2009. The court had to determine whether these procedural failings were so significant that they rendered the application invalid.

The primary issue before the court was whether the procedural non-compliance, specifically the failure to provide a copy of the agreement to employees in a timely manner, was so substantial as to invalidate the application for approval. The applicant argued that the error was minor and did not prejudice the employees. Conversely, the respondent contended that the non-compliance was a breach of statutory obligations and thus required the application to be dismissed.

In rendering its decision, the court considered the specific procedural requirements under the Fair Work Act and the context in which the non-compliance occurred. It found that while the failure to provide a copy of the agreement was indeed a breach, the delay was minimal and there was no evidence that the employees were disadvantaged by this omission. Consequently, the court held that the procedural error did not warrant dismissal of the application and approved the enterprise agreement.

The court's final order was to approve the Monaco Hickey Pty Ltd the CFMEU (Victorian Construction and General Division) Enterprise Agreement 2020-2023, with the condition that the applicant rectify the procedural error by ensuring all employees receive a copy of the agreement within a specified timeframe. The approval was granted on the basis that the procedural breach was not significant enough to undermine the overall fairness or compliance of the agreement.

Monaco Hickey 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