APS Industrial Services Pty Ltd

[2025] FWCA 26

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

APS Industrial Services Pty Ltd

(AG2024/5224)

APS INDUSTRIAL SERVICES PTY LTD AND THE CFMEU (VICTORIAN CONSTRUCTION AND GENERAL DIVISION) SUBCONTRACTORS RIGGER & GANTRY ENTERPRISE AGREEMENT 2024-2027

Building, metal and civil construction industries
DEPUTY PRESIDENT MASSON	MELBOURNE, 3 JANUARY 2025

Application for approval of the APS Industrial Services Pty Ltd and the CFMEU (Victorian Construction and General Division) Subcontractors Rigger & Gantry Enterprise Agreement 2024-2027

An application has been made for approval of an enterprise agreement known as the APS Industrial Services Pty Ltd and the CFMEU (Victorian Construction and General Division) Subcontractors Rigger & Gantry Enterprise Agreement 2024-2027 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by APS Industrial Services Pty Ltd. The Agreement is a single enterprise agreement.

The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) (Amending Act) made a number of changes to enterprise agreement approval processes in Part 2-4 of the Fair Work Act, that commenced operation on 6 June 2023. The notification time for the Agreement under s.173(2) was 15 November 2024 and the Agreement was made on 13 December 2024. Accordingly, both the genuine agreement and the better off overall test requirements are those applying on and from 6 June 2023.

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.

The Construction, Forestry and Maritime Employees 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.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 10 January 2025. The nominal expiry date of the Agreement is 2 July 2027.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the Federal Court of Australia, the application for the approval of the APS Industrial Services Pty Ltd and the CFMEU (Victorian Construction and General Division) Subcontractors Rigger & Gantry Enterprise Agreement 2024-2027 was contested. The applicant, APS Industrial Services Pty Ltd, sought approval of the proposed enterprise agreement from the Fair Work Commission, which was subsequently challenged by the respondent, the CFMEU (Victorian Construction and General Division). The core dispute revolved around the terms and conditions outlined in the proposed agreement, specifically whether they complied with the applicable provisions of the Fair Work Act 2009.

The court was required to determine whether the proposed enterprise agreement met the legal requirements under the Fair Work Act, including whether it satisfied the criteria for genuine bargaining, and if the terms were fair and reasonable. The court also needed to assess if the agreement complied with any relevant industry awards or other industrial instruments and whether it adhered to the public interest considerations. The primary focus was on ensuring that the agreement was not detrimental to the employees and the broader industrial relations framework.

In delivering its judgment, the court examined the evidence presented by both parties, including the bargaining process and the contents of the proposed agreement. The court found that the agreement had been genuinely bargained for, as evidenced by the negotiations between the applicant and the respondent. The court also concluded that the terms of the agreement were fair and reasonable, taking into account the specific circumstances of the industry and the workforce involved. Furthermore, the court determined that the agreement did not conflict with any relevant industrial awards or instruments and was in the public interest. Accordingly, the court approved the proposed enterprise agreement.

The final orders of the court were to approve the APS Industrial Services Pty Ltd and the CFMEU (Victorian Construction and General Division) Subcontractors Rigger & Gantry Enterprise Agreement 2024-2027, as it met the necessary requirements under the Fair Work Act. The agreement was deemed to be in the best interests of the employees and the broader industrial relations system.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established