P & D Rigging & Crane Hire Pty Ltd

[2021] FWCA 7247

[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

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Annexure A