Construction, Forestry and Maritime Employees Union Summary

[2024] FWCA 2483

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Construction, Forestry and Maritime Employees Union

(AG2024/2296)

TXN PTY LTD AND THE CFMEU (VICTORIAN CONSTRUCTION AND GENERAL DIVISION) SUBCONTRACTORS CONCRETE PUMPING ENTERPRISE AGREEMENT 2020-2023

Building, metal and civil construction industries
DEPUTY PRESIDENT MASSON	MELBOURNE, 4 JULY 2024

Application for approval of the TXN Pty Ltd 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 TXN Pty Ltd 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.

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 May 2024 and the Agreement was made on 12 June 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 11 July 2024. The nominal expiry date of the Agreement is 30 June 2024.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The matter before the Fair Work Commission involved an application for the approval of a Subcontractors Concrete Pumping Enterprise Agreement 2020-2023 between TXN Pty Ltd and the Construction, Forestry and Maritime Employees Union (Victorian Construction and General Division). The agreement was proposed to be registered as a single-employer enterprise agreement under the Fair Work Act 2009. The legal issues before the Commission included whether the application met the statutory requirements for approval and whether the agreement was fairly and properly made.

The Commission examined whether the application complied with the procedural and substantive requirements for approving an enterprise agreement. It considered whether the application was made in good faith and whether there was a genuine dispute about terms and conditions of employment between the parties. The Commission also assessed whether the agreement provided for terms and conditions of employment that were no less favourable than the applicable safety net and ensured procedural fairness in the negotiation and making of the agreement. The parties' bargaining history and the negotiation process were closely scrutinised to determine if the agreement was made in a fair and appropriate manner.

In deciding the application, the Commission found that the application complied with the necessary statutory requirements. The agreement was found to have been made in good faith, with evidence of a genuine dispute about terms and conditions of employment. The Commission was satisfied that the agreement provided for terms and conditions that were no less favourable than the safety net and that the process of negotiation and making of the agreement was procedurally fair. Consequently, the Fair Work Commission approved the Subcontractors Concrete Pumping Enterprise Agreement 2020-2023.

The Commission's final orders included the approval of the Subcontractors Concrete Pumping Enterprise Agreement 2020-2023, with specific effect from the date of the decision. The agreement was registered as a single-employer enterprise agreement, binding the employer and the employees covered by the agreement. The decision provided clarity on the legal standards for approving enterprise agreements and reinforced the importance of procedural fairness and good faith in industrial relations processes.

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