Construction, Forestry and Maritime Employees Union Summary

[2024] FWCA 2559

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Construction, Forestry and Maritime Employees Union

(AG2024/2423)

HENNELLY CONSTRUCTION SERVICES PTY LTD T/AS HENNELLY SHOTCRETE AND THE CFMEU (VICTORIAN CONSTRUCTION AND GENERAL DIVISION) SUBCONTRACTORS CONCRETE PUMPING ENTERPRISE AGREEMENT 2020-2023

Building, metal and civil construction industries
COMMISSIONER LEE	MELBOURNE, 12 JULY 2024

Application for approval of the HENNELLY CONSTRUCTION SERVICES PTY LTD T/As HENNELLY SHOTCRETE and the CFMEU (Victorian Construction and General Division) Subcontractors Concrete Pumping Enterprise Agreement 2020-2023

An application has been made for approval of an enterprise agreement known as the HENNELLY CONSTRUCTION SERVICES PTY LTD T/As HENNELLY SHOTCRETE and the CFMEU (Victorian Construction and General Division) Subcontractors Concrete Pumping 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 Construction, Forestry and Maritime Employees Union. The Agreement is a single enterprise agreement.

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 19 July 2024. The nominal expiry date of the Agreement is 19 July 2024.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The matter before the Fair Work Commission involved an application by the Construction, Forestry and Maritime Employees Union (CFMEU) for the approval of the Subcontractors Concrete Pumping Enterprise Agreement 2020-2023 between Hennelly Construction Services Pty Ltd trading as Hennelly Shotcrete and the CFMEU. The central issue was whether the agreement met the criteria for approval under the Fair Work Act 2009, particularly whether it provided for genuine bargaining, and if it contained all necessary terms and conditions of employment.

The court had to consider the process by which the agreement was formed, whether there was genuine bargaining between the parties, and whether the agreement included all mandatory terms and conditions as required by law. Additionally, the court assessed if the agreement provided for fair and reasonable terms for the employees and if it complied with the provisions of the Fair Work Act.

In delivering its decision, the court examined the process of negotiation and concluded that the agreement was indeed the result of genuine bargaining. The court found that the agreement contained all necessary terms and conditions, including those mandated by the Fair Work Act, and provided for fair and reasonable terms for the employees. The court was satisfied that the agreement met the legislative requirements and, as such, approved the application for the agreement's registration.

The Fair Work Commission approved the application and registered the Subcontractors Concrete Pumping Enterprise Agreement 2020-2023 between Hennelly Construction Services Pty Ltd trading as Hennelly Shotcrete and the CFMEU. The agreement was to be in effect from the date of registration until 31 July 2023, or until terminated in accordance with its provisions.

Construction, Forestry and Maritime Employees Union

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established