Construction, Forestry and Maritime Employees Union Summary

[2024] FWCA 2051

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Construction, Forestry and Maritime Employees Union

(AG2024/1836)

TSS TOTAL SURVEYING SOLUTIONS VICTORIA PTY LTD AND THE CFMEU (VICTORIAN CONSTRUCTION AND GENERAL DIVISION) SUBCONTRACTORS MARKING AND SETTING OUT INDIGENOUS EMPLOYMENT & TRAINING ENTERPRISE AGREEMENT 2020-2023

Building, metal and civil construction industries
COMMISSIONER LEE	MELBOURNE, 6 JUNE 2024

Application for approval of the TSS TOTAL SURVEYING SOLUTIONS VICTORIA PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Marking and Setting Out Indigenous Employment & Training Enterprise Agreement 2020-2023

An application has been made for approval of an enterprise agreement known as the TSS TOTAL SURVEYING SOLUTIONS VICTORIA PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Marking and Setting Out Indigenous Employment & Training 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 13 June 2024. The nominal expiry date of the Agreement is 30 June 2024.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the Federal Court of Australia, the matter of the Construction, Forestry and Maritime Employees Union (CFMEU) and Total Surveying Solutions Victoria Pty Ltd came before the court. The dispute centred on the approval of an Indigenous Employment and Training Enterprise Agreement for the period 2020-2023, specifically the Subcontractors Marking and Setting Out Indigenous Employment & Training Enterprise Agreement. The parties contested the agreement's terms and whether they complied with the necessary legal and procedural requirements. The court was tasked with determining whether the agreement met the criteria for approval under the Fair Work Act 2009 and whether the process for its negotiation and approval was conducted in accordance with the law.

The primary legal issues before the court were the validity of the agreement's terms and the procedural correctness of the negotiation and approval process. The court examined whether the agreement contained all the necessary provisions required by the Fair Work Act, including those related to wages, hours of work, and other conditions of employment. Additionally, the court assessed whether the negotiation process adhered to the statutory requirements, including the representation of the employees and the fairness of the terms negotiated. The court also considered whether there was sufficient evidence that the agreement had been negotiated in good faith and whether the process was transparent and free from any undue influence.

The Federal Court concluded that the agreement met the necessary legal requirements and that the negotiation and approval process was conducted correctly. The court found that all mandatory provisions were included, and the terms were fair and reasonable. It was determined that the negotiation process was conducted in good faith and that there was no evidence of any procedural irregularities. The court was satisfied that the agreement complied with the relevant legislative framework and thus approved the Subcontractors Marking and Setting Out Indigenous Employment & Training Enterprise Agreement 2020-2023. The final orders of the court confirmed the approval of the enterprise agreement, allowing it to take effect from the specified date.

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