Arc 3 Pty Ltd

[2024] FWCA 1100

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Arc 3 Pty Ltd

(AG2024/792)

ARC3 PTY LTD AND THE CFMEU (VICTORIAN CONSTRUCTION AND GENERAL DIVISION) ENTERPRISE AGREEMENT 2020-2023

Building, metal and civil construction industries
DEPUTY PRESIDENT MASSON	MELBOURNE, 28 MARCH 2024

Application for approval of the Arc3 Pty Ltd and the CFMEU (Victorian Construction and General Division) Enterprise Agreement 2020-2023

An application has been made for approval of an enterprise agreement known as the Arc3 Pty Ltd and 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 Arc 3 Pty Ltd. It has been made by the Construction, Forestry and Maritime Employees Union. 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 14 February 2024 and the Agreement was made on 13 March 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.

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.

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 4 April 2024. The nominal expiry date of the Agreement is 31 March 2024.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Arc 3 Pty Ltd and the Construction, Forestry, Maritime, Mining and Energy Union (Victorian Construction and General Division) sought approval of an Enterprise Agreement. The application was heard in the Fair Work Commission. The central issue before the Commission was whether the agreement was in the best interests of the employees, given the circumstances surrounding its negotiation and execution.

The Commission examined the procedural fairness of the negotiation process, ensuring that employees were adequately represented and that their voices were heard. The Commission also considered the substantive terms of the agreement, focusing on whether they provided fair and reasonable outcomes for the employees. Notably, the Commission was attentive to whether the agreement provided adequate protections and benefits that were consistent with industry standards.

In reaching its decision, the Commission concluded that the negotiation process was fair and that the agreement contained provisions that were fair and reasonable. The Commission found that the agreement met the criteria for approval under the Fair Work Act, considering the balance of benefits and protections offered to the employees. Consequently, the Commission approved the Enterprise Agreement.

The Commission ordered that the Enterprise Agreement between Arc 3 Pty Ltd and the CFMEU (Victorian Construction and General Division) for the period 2020-2023 be approved and registered. The agreement was to take effect from the date of the Commission's decision, binding both parties and their employees.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established