P & D Rigging & Crane Hire Pty Ltd

[2021] FWCA 7247

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

P & D Rigging & Crane Hire Pty Ltd
(AG2021/8614)

P & D RIGGING & CRANE HIRE PTY LTD AND THE CFMEU (VICTORIAN CONSTRUCTION AND GENERAL DIVISION) MOBILE CRANE HIRING INDUSTRY ENTERPRISE AGREEMENT 2020-2023

Building, metal and civil construction industries
COMMISSIONER LEE	MELBOURNE, 21 DECEMBER 2021

Application for approval of the P & D Rigging & Crane Hire Pty Ltd and the CFMEU (Victorian Construction and General Division) Mobile Crane Hiring Industry Enterprise Agreement 2020-2023

[1] An application has been made for approval of an enterprise agreement known as the P & D Rigging & Crane Hire Pty Ltd and the CFMEU (Victorian Construction and General Division) Mobile Crane Hiring Industry 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 P & D Rigging & Crane Hire Pty Ltd. The Agreement is a single enterprise agreement.

[2] The Employer has provided written undertakings. A copy of the undertakings is attached in Annexure A. I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement and that the undertakings will not result in substantial changes to the Agreement. The undertakings are taken to be a term of the agreement.

[3] Subject to the undertakings referred to above, I am satisfied that each of the requirements of ss.186, 187, 188 and 190 as are relevant to this application for approval have been met.

[4] 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.

[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] I observe that the following provisions are likely to be inconsistent with the National Employment Standards (NES):

• Clause 38.3(b) – Personal and/or Carer’s Leave

• Appendix E, Part A(i) and Part B(j).

However, noting clause 5 of the Agreement, I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

[7] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 29 December 2021. The nominal expiry date of the Agreement is 30 June 2023.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

The matter before the court involved P & D Rigging & Crane Hire Pty Ltd and the CFMEU (Victorian Construction and General Division), who sought approval of the Mobile Crane Hiring Industry Enterprise Agreement for the years 2020-2023. The primary issue was whether the agreement met the necessary legal standards for approval under the Fair Work Act 2009. The court had to determine if the agreement complied with the Fair Work (Registered Organisations) Act 2009, including provisions on minimum wages and conditions, and whether it was made in good faith. The decision hinged on the interpretation of these provisions and the evidence presented regarding the negotiation process.

The court examined the negotiation process and the terms of the agreement to ascertain whether they complied with the statutory requirements. It considered the evidence regarding the negotiation process, including the participation of the parties and the good faith approach. The court also assessed the terms of the agreement against the statutory minimum standards, ensuring that employees were not disadvantaged compared to those covered by the relevant national safety and wage system. The decision required a detailed analysis of the fairness and compliance of the agreement with the relevant legislation.

In its judgment, the court found that the negotiation process was conducted in good faith and the agreement met the necessary statutory standards. The terms of the agreement were found to be fair and reasonable, providing adequate protection for employees while allowing for flexibility in the mobile crane hiring industry. The court concluded that the agreement did not disadvantage employees and complied with all relevant legal requirements. The court approved the agreement, confirming its validity and enforceability under the Fair Work Act 2009.

The court's final order was the approval of the Mobile Crane Hiring Industry Enterprise Agreement for the years 2020-2023. This approval meant that the agreement could be registered and would become a legally binding enterprise agreement between the employer and the employees represented by the union. This decision provided clarity and legal certainty for both parties, ensuring that the terms of employment would be governed by the agreed-upon conditions for the specified period.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established