Construction, Forestry and Maritime Employees Union Summary

[2024] FWCA 2353

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Construction, Forestry and Maritime Employees Union

(AG2024/2130)

AUSWOOD GROUP (VIC) PTY LTD AND THE CFMEU (VICTORIAN CONSTRUCTION AND GENERAL DIVISION) SUBCONTRACTORS CARPENTRY AND JOINERY ENTERPRISE AGREEMENT 2020-2023

Building, metal and civil construction industries
DEPUTY PRESIDENT MASSON	MELBOURNE, 25 JUNE 2024

Application for approval of the AUSWOOD GROUP (VIC) PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Carpentry and Joinery Enterprise Agreement 2020-2023

An application has been made for approval of an enterprise agreement known as the AUSWOOD GROUP (VIC) PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Carpentry and Joinery 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 6 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 2 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 Carpentry and Joinery Enterprise Agreement between the AUSWOOD GROUP (VIC) PTY LTD and the CFMEU (Victorian Construction and General Division) for the period 2020-2023. The dispute centred on the specifics of the agreement and its compliance with the relevant federal legislation, particularly the Fair Work Act 2009. The Commission was tasked with assessing whether the agreement met the necessary criteria for approval, including provisions on wages, conditions of employment, and procedural fairness.

The primary legal issues the Commission needed to resolve included whether the agreement satisfied the requirements of the Fair Work Act, particularly regarding minimum wage rates, penalty rates, and procedural fairness. The Commission also needed to ensure that the agreement did not contravene any other relevant laws or industrial instruments. The scrutiny extended to the agreement's provisions on hours of work, overtime, shift patterns, and other employment conditions. Additionally, the Commission had to determine whether the agreement provided adequate mechanisms for the resolution of disputes and grievances.

The Commission carefully examined the terms of the agreement, considering submissions from both parties and relevant stakeholders. The Commission found that the agreement met the majority of the statutory requirements, including the provision of fair wages and conditions. However, there were certain clauses that did not comply with the Act, particularly in relation to procedural fairness. After considering the submissions and the broader context of the agreement, the Commission decided that, despite the non-compliant clauses, the overall agreement provided fair and reasonable terms for the employees and was in the best interests of the parties involved. The Commission approved the agreement subject to the correction of the non-compliant clauses to align with the Act.

The final orders of the Commission included the approval of the Subcontractors Carpentry and Joinery Enterprise Agreement 2020-2023 between the AUSWOOD GROUP (VIC) PTY LTD and the CFMEU (Victorian Construction and General Division), with the condition that the non-compliant clauses be amended to comply with the Fair Work Act. The Commission mandated that the parties work together to address and rectify these issues within a specified timeframe.

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